Challenging The Rule(s) of Law
ii
Challenging The Rule(s) of Law
Challenging The Rule(s) of Law
Colonialism, Criminology and Human Rights in India
Edited by
Kalpana Kannabiran
Ranbir Singh
Copyright © Kalpana Kannabiran and Ranbir Singh, 2008
All rights reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or
mechanical, including photocopying, recording or by any information storage or retrieval system, without permission
in writing from the publisher.
First published in 2008 by
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Library of Congress Cataloging-in-Publication Data
Challenging the rule(s) of law: colonialism, crominology and human rights in India/edited by Kalpana Kannabiran
and Ranbir Singh.
p. cm.
Includes bibliographical references and index.
1. Criminal justice, Administration of—India. 2. Rule of law—India—History. 3. Crime—India—History. 4.
Criminology—India—History. 5. Criminal law—India. 6. Human rights—India. 7. India—History—British
occupation, 1965–1947. I. Kannabiran, Kalapana. II. Singh, Ranbir. III. Title: Challenging the rule of law.
KNS3411.C43
345.54'05—dc22
2008
ISBN: 978-0-7619-3665-7 (HB)
The SAGE Team: Sugata Ghosh, Richa Raj, Amrita Saha, Trinankur Banerjee
Cover Conceptualised by Vishnu Mohan’s Sutras
2008031276
978-81-7829-831-3 (India-HB)
for
Upendra Baxi
in solidarity
vi
Challenging The Rule(s) of Law
Contents
Acknowledgements
Introduction by Kalpana Kannabiran and Ranbir Singh
x
xi
SECTION I
THE CONSTRUCTION OF CRIME AND CRIMINALITY
1. Laws of Metamorphosis: From Nomad to Offender
Meena Radhakrishna
3
2. Victims and Villains: The Construction of Female Criminality in Colonial Calcutta
Sumanta Banerjee
28
3. ‘That Despicable Specimen of Humanity’: Policing of Homosexuality in India
Arvind Narrain
48
4. Sexual Assault and the Law
Kalpana Kannabiran
78
SECTION II
VULNERABILITY, GOVERNANCE AND THE LAW
5. Social Exclusion and Criminal Law
S.R. Sankaran
121
6. Building a Subaltern Women’s Perspective
Jayshree P. Mangubhai and Aloysius Irudayam S.J.
142
7. Whose Life is it Anyway?: Adivasi Communities and Entitlements to Life
Seema Misra
165
viii
Challenging The Rule(s) of Law
8. Preserving Wellness and Personhood: A Psychosocial Approach to the Child
Shekhar P. Seshadri and Kaveri I. Haritas
181
SECTION III
LEGISLATING THE ‘OTHER’ AND THE ‘EXTRAORDINAIRE’
9. Penal Strategies and Political Resistance in Colonial and Independent India
Ujjwal Kumar Singh
227
10. Communities, Gender and the Border: A Legal Narrative on India’s North East
Paula Banerjee
257
11. Parens Patriae: Exercising Patriarchal Prerogative in Post-Partition India
Ritu Menon
281
SECTION IV
SOCIAL ORDERING OF THE ‘LEGAL’
12. Law and Life in the State of Nature: Archiving Stories from Legal Literacy
Abha Singhal Joshi
13. Revisiting Impunity and Criminality: Of Corruption, Collusion, Consequences
and Victims
Vijay K. Nagaraj
14. Khap Panchayats in Haryana: Sites of Legal Pluralism
K.S. Sangwan
295
314
331
SECTION V
HUMAN RIGHTS AND CRIMINAL JURISPRUDENCE
15. Crimes, Passion and Detachment: Colonial Foundations of Rule of Law
Ranabir Samaddar
16. Conspiracies of Association: Associational Offences, Associational Freedoms
and the Rule of Law
K.G. Kannabiran
355
382
Contents
17. Of Strong Medicine and Weak Stomachs: The Resort to Enhanced
Punishment in Criminal Law in India
Bikram Jeet Batra
ix
409
18. The Contexts of Criminology: A Brief Restatement
Kalpana Kannabiran
451
About the Editors and Contributors
Index
477
482
Acknowledgements
This collection of essays has taken us three years to complete. It was conceived as part of the project,
‘Strengthening Criminal Justice and Human Rights in India’, supported by the Ford Foundation.
We are grateful to Aubrey McCutcheon and Bishnu Mohapatra for their support.
The project housed in NALSAR University of Law, Hyderabad was successfully completed
because of the unstinting support of our colleagues at NALSAR. We thank every member of the
faculty for making this possible.
Our contributors have made it possible for us to carry this endeavour through, with their interest,
enthusiasm and good cheer. This volume developed through conversations with them. We hope that
this is only the beginning of a long and fruitful partnership with the entire group.
We thank Sugata Ghosh from SAGE Publications for his prompt and encouraging response
and also the entire SAGE team for seeing the manuscript through the press.
Finally, our sincere thanks to our families for having cheerfully borne our absence and preoccupation. Needless to say this would not have been possible without them.
Hyderabad
Kalpana Kannabiran
Ranbir Singh
Introduction
Kalpana Kannabiran and Ranbir Singh
Human rights movements in India have persistently interrogated systems of criminal justice in
the country over the past three decades. The concerns have ranged from addressing the problem
of arbitrary detention during the Emergency of 1975–77 to constructing entire communities as
criminal, thereby justifying forced dispossession and/or mass violence. While overt violence by
state actors and their complicity in violence by dominant private actors has been a major concern, there has also been the problem of abdication by the state of the responsibility to secure the
right to life to a majority of the people. Immediately after the Emergency, there was a widespread
acknowledgement particularly in courts, of the fact that the law is unequal especially in terms of
access to and delivery of justice. The acknowledgement that this inequality negated the fundamental
guarantee of equality was the direct result of struggles by democratic rights groups in different
states. As more and more groups flocked to the Supreme Court to seek ‘extraordinary remedies,
transcending the received notions of separation of powers and the inherited distinctions between
adjudication and legislation on the one hand and administration and adjudication on the other’, for
unusual problems ‘arising from repression, government lawlessness and administrative deviance’,1 we
witnessed the emergence of a ‘juridical democracy’—not without its shortcomings, but important
nevertheless—with activists, lawyers and judges crafting intellectual resources hitherto unknown,
in order to entrench democratic values firmly in the public domain.2
Through a painstaking mapping of the crisis in the legal system in India, and comparative
analyses of constitutionalism and the rule of law, Upendra Baxi sets up several signposts, which
would be productive to recall at the beginning of this volume. A cursory examination of Baxi’s work
points us to the different levels at which his work has been relevant to an understanding of human
rights and criminology—in judicial decision making,3 advocacy, resistance politics and theory. The
authorship of the essays contained here mirrors this diversity in his engagement with law. The first
part of this brief introduction will sketch, in a somewhat arbitrary fashion, a small part of Baxi’s
writing on the concerns voiced in the chapters in this volume. The second part will outline the
scheme of this collection.
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Challenging The Rule(s) of Law
Looking at the problem of construction of crime and criminality in the context of the recommendations of the Malimath Committee on Reforms of the Criminal Justice System, Baxi critiques
the view of crime that targets ‘“habitual”, “violent” and “absconding” offenders’ rather than the
‘highly placed political suspects prima facie responsible for violence of the 1984 Sikh massacre,
6 December at Ayodhya, and the ensuing carnage [or] the perpetrators of awesome complicity in
crimes against Indian people manifest in Gujarat, 2002 events.’4 Further, constructing ‘criminality
as a human rights violation’, is completely contradictory to the constitutional reading of human
rights5 and guarantees impunity to those who routinely perpetrate atrocities and ‘unthinkable
violence’ on entire communities that have already been labelled ‘habitual’ offenders. What does a
critical engagement with law mean in this context? ‘If the law is the crooked mirror of perverse
social domination, its smashing, the “trashing” of the law, is at best an idle pastime. If, however,
the law is also the constitutive condition of production/re-production [of rightlessness], it offers
among the first sites of struggle against cultural and political domination.’6
There is the third situation where the law is neither a crooked mirror, nor the basis for denial
of rights and dignity, it rather defines the constitutive basis of equality and non-discrimination.
The Indian Constitution prohibits practices of untouchability, agrestic serfdom and trafficking
in human beings. And yet, there is extensive documentation of the ways in which gross violations continue, finding their justification in civil society and culture. Anticipating the questions
raised by human rights movements and anti-caste movements that drew international attention to
the specific practices of caste discrimination within the framework of the UN Convention on the
Elimination of All Forms of Racial Discrimination, Baxi asks, ‘if over a period of time the State
policies do not become effective, even at a minimal level, should this amount, under the definitional
formulation, to a violation of international law? If ameliorative measures require resources at desired
levels and a State fails to raise or provide these, should this be considered among “encouraging”
or “condoning” “practices”? ...[S]hould in principle the failure of the State to cope with repressive
cultures and social structures with expedition be considered a violation of international law? If so
designated, what consequences may follow?’7
The question of state complicity through neglect takes us back to the conceptualisation of
impoverishment and the problems therein. Critiquing the strong paternalism that imbues anti
poverty programmes, Baxi uses the term impoverishment instead of poverty, as a way of reconceptualising economic relations, so that the impoverished emerge ‘as a series of diverse groups,
and individuals within these…[who] have been impoverished, or maintained as such, by different causative factors and forces at different moments of domination.… The impoverished…quite
often…display collective associational strength’ thereby inviting horrible repression. In the face of
such repression, they ‘forge their own weapons of resistance and rationalization.’8 In a perennial
spiral, the violence of developmental judgements/decisions is reinforced by the militarisation of
governance and militarised state response is met by the assertion of insurgent groups that collective
Introduction
xiii
political violence is the only road to justice for the people. And this in turn leads to an exponential
growth of para-military forces on the one hand and increasing numbers of ‘rightless’ people on
the other.9
At another level, the most expedient ways that governments have found to deal with agitational
politics has been ‘preventive crisis management’ whereby direct action that poses the most serious
threat to stability is dealt with urgently, while more passive, ‘lawful’ petitioning is met with endless
deferral.10 The important question before us today is how does this crisis management criminalise
associational freedoms exercised through agitational politics, especially the right to strike? What
are the historical roots of this suppression of strike and protest?
What is the relationship between constitutionalism, colonialism and foundational violence.
Mapping the ‘perfectability of modern notions of constitutionalism in the metropolitan societies’
and the simultaneous ‘denial of its tenets in the juristic and juridical terra nullius constituted by
colonies’, Baxi traces the formation of ‘epistemic legal racism’ which establishes ‘the patterns of perfection for fractured growth of liberal rule of law notions in the metropolis with a reign of terror
elsewhere.’11
Human rights resistance, in the ultimate analysis, is located in the context of radical evil.
In confronting and interrogating violations, human rights paradigms open up further sites of
resistance—by asserting the rights of all people to self-determination,—‘a right to a voice, a right
to bear witness to violation, a right to immunity against disarticulation by concentrations of economic, social, and political formations.’12 This immediately foregrounds an ethic of power, which
prevents the imposition of violence whether in the name of sovereignty, imperialism or patriarchy
or, in our times, community. ‘[E]ngaged human rights discourse’, Baxi observes, ‘makes possible
a deeper understanding of the politics of difference.... It insists that the Other is not dispensable.
It sensitises us to the fact that the politics of Otherhood is not ethically sensible outside the urgency
of the maxim: “Ask not for whom the bell tolls; it tolls for thee.” It insists with Rabbi Israeli Salanter
that the ‘material needs of my neighbour are my spiritual needs.’13
Constitutionalism, then, is no longer the monopoly of the dominant to be used ‘to pronounce
decisions concerning the state of exception’. Subaltern constitutionalism ‘crystallizes [a multitudinous
register of diverse] citizen practices of reimaging democracy, politics, and the fullness of democratic
citizenship.’14
This collection of essays re-examines the field of criminology through an interdisciplinary lens,
speaking to Upendra Baxi’s concerns and work in India, challenging in the process unproblematic
assumptions of the rule of law and opening out avenues for a renewed, radical and situated
restatement of the contexts of criminal law.15
Section I focusses on the construction of crime and criminality in the colonial period. The
British instituted a piece of legislation, the Criminal Tribes Act (CTA) in 1871. The purpose of
the Act was to suppress ‘hereditary criminal’ sections of Indian society. CTA was first applied in
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Challenging The Rule(s) of Law
North India and in 1911 a revised version was applied to the whole of British India. A total of
about 200 communities were affected by this law. Meena Radhakrishna traces the history of this
legislation and the discursive evolution of a nomad into a criminal, through a process of comparison and association. Even while the concept of crime was undergoing a change and pre-colonial
practices were being increasingly designated as crime, socio-economic tensions in the new wave of
urbanisation, Sumanta Banerjee argues, gave birth to new types of crimes that were driven both by
poverty and rising ambition among sections of the urban middle class. Accounts of women criminals
in colonial Calcutta that are available in police records and writings of contemporary observers
are tinged with a misogynous bias that proceeded on a number of assumptions—from biological
positivists to stereotypes of the sexual enchantress and views that held female law-breakers to be
delinquents of a special type who were in essence non-women. Yet, Banerjee argues, if one reads
between the lines of these highly misogynist accounts, one can discover occasionally the complex
forms of social oppression and economic exploitation that led these women to break the law. If
sexual behaviour has been a key determinant in the construction of women’s criminality in the
colonial period, how does this get further polarised with respect to sexual orientation? Sodomy
as a crime has been implanted into Indian society in the form of Section 377 of the Indian Penal
Code. What is the social role, Arvind Narrain asks, which is served by the constitution of carnal
intercourse as an offence? Of course the reason for criminalisation can be read in the Judaeo-Christian
framework of morality animating the colonial administrators of the day. In the changed context
of an independent India, what role does it play in bringing about the ‘normality’ of everyday
life and in keeping in place the structure of family and community? Is the idea of heterosexuality
as normal really underpinned by the continued stigmatisation of the homosexual as abnormal?
Within practices of heterosexuality, the issue of sexual assault has been one that has confounded
Indian courts over the past three and a half decades. While the problem to begin with, was the way in
which the offence of rape was constructed in the Penal Code, the more difficult and insurmountable
problem had to do with the place of rape and more fundamentally, that of the woman’s body in
the social imaginary in India. Tracing the debates within courts and in communities on the issue
of consent and sexual assault from the colonial to the contemporary period, Kalpana Kannabiran
attempts to unravel the complexity of the problem of rape and the multiple locations of justice to
survivors, in an environment that is at best hostile.
Section II examines questions of vulnerability, governance and law. Dalit and Adivasi communities, women and children have always been vulnerable to the perpetration of structural crime, a
vulnerability that has been compounded by the complete lack of effective access to systems of justice.
Although the Constitution assured the dignity of the individual human being in its Preamble, it
was only four decades later that a statutory prohibition of manual scavenging was provided for
through the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition)
Act which was passed in 1993. Similarly, the Bonded Labour System (Abolition) Act was enacted
Introduction
xv
only in 1976, although Article 23 of the Constitution was already in place in 1950. S.R. Sankaran
examines the network of Constitutional and penal provisions on the question of social exclusion
and explores the implications of these realities for an understanding of criminology in India. The
criminal justice system fails to take into account systemic discrimination embedded in the policies, procedures and culture of public and private institutions. Jayashree P. Mangubhai and Aloysius
Irudayam S.J. argue that the focus of criminal law on maintaining law and order, often obscures
the wider social problems that feed the cycle of crime. What exists today therefore is an atmosphere
of impunity for gender crimes against Adivasi and Dalit women. Even though the Constitution of
India guarantees equality and the right to life and livelihood to all its citizens, there is a large section of the population whose every day existence itself is illegal. The Adivasis live on and cultivate
lands, which have been declared sanctuaries or national parks. One of the few options available
to these citizens to protect their rights is to organise themselves and protest against state action,
policy and law. The state has used brutal force to disperse these demonstrations to ensure that there
is no further attempt to raise their voices again. By tracking adivasi protest movements on threat
of eviction and loss of livelihood since 2000, Seema Misra examines the legislative and judicial
responses to the questions of illegality of existence of the impoverished. Arguing on the need for
an integration of mental health and law so as to ensure sensitive and ethical ways of dealing with
children under the law, Shekhar P. Seshadri and Kaveri Haritas explore the status of children under
Indian criminal law and address various aspects of the relationship between children and law: the
conflict between the provisions of the Juvenile Justice Act and other rights of the child; questions
relating to the credibility of child testimony, both in the case of child witness and the child victim;
the lacuna in substantive law to specifically provide for child sexual abuse, and re-victimisation of
children under the prevalent insensitive procedures; the treatment of child victims of trafficking
and the need for substantive and procedural law to focus on healing mechanisms for the child
victim of sexual abuse apart from the focus on penalising the abuser.
Section III looks at the ways in which borders and boundaries have been legislated over the past
century. By exploring the discursive practices surrounding specific laws, trials, and the ideology
of punishment in colonial and independent India, Ujjwal Kumar Singh attempts to demonstrate
the ways in which the penal system delineated the exceptional and the extraordinary and built
legal and penal practices commensurate with it. How do doctrines of necessity validate the suspension of ordinary laws and procedures, identifying in the process extraordinariness, which lies
within rather than outside borders? More importantly, what implications does this process have for
political resistance and assertions of popular sovereignty? Through an analysis of laws such as the
Armed Forces Special Powers Act (AFSPA), The National Security Act and so on, Paula Banerjee
maps the process through which groups were marked recalcitrant by evolving border laws and
then treated as criminals. The evolving history of these Acts, especially the AFPSA, she argues, will
demonstrate how a state by institutionalising violence securitises a certain area and how that leads
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Challenging The Rule(s) of Law
to the securitisation of the whole region. Women of these communities are portrayed not merely
as deviant but their sexuality itself is considered as threatening and so the impact of these laws on
women are even more violent. Rape against these women is justified as means of controlling them.
It is therefore, not surprising, she observes, that the most vociferous protest against these laws have
come from the women who are in the forefront of any such protest movement today, for instance
the Meira Paibis. Approximately 14 million people crossed over from one country to the other
in 1947, in the brief period following British India’s division into India and Pakistan. With regard
to abducted persons, the two governments arrived at an agreement in November 1948 that set
out the terms for recovery in each dominion. This was followed, in India, by the promulgation of
the Abducted Persons (Recovery and Restoration) Act of 1949, which was renewed every year till
1956, when it was allowed to lapse. Ritu Menon argues that in the exercise of providing protection,
nurturance and compensation, the government actually withheld or abrogated certain fundamental
rights of citizens, and that the language of the acts and ordinances reiterated the penal culture of
bounded refugee camps or settlements. Among other things, she argues, the Abducted Persons
Act suspended the right to residence of women citizens, as well as their right to choose where
and with whom they wished to live. Further, the responsibility of being both mai and baap with
regard to abducted women displayed all the classic characteristics of single parenthood—when to
be authoritarian, when to nurture—on one hand, and on the other a profound disjunction between
the ethics of caring and the exercise of power, as well as the contradictions inherent in the charity
versus rights positions.
Section IV examines the specific ways in which the legal is socially ordered. Abha Joshi presents
an analysis of experiential accounts and responses of persons drawn from various backgrounds
all over the country, attempts to examine the ordinary and unsung ‘criminal’—which includes
not only persons who have actually committed crimes, or formally been accused of crimes, but
even those who, because of who they are, raise a presumption of being criminals. It will focus on
the perception of ‘law’ amongst common citizens as a tool to be feared and avoided; a machine
which is commanded by and therefore works best only for those who are affluent or otherwise
powerful. The system as it operates, she argues, generates a constant and living ‘fear and insecurity’;
it sets limitations on the movements, lives and actions of people where none should rationally
or legally be; it engenders a hatred for the state and all its instruments and pushes a person back
into the state of nature where men live in a ‘condition of war’. Impunity is considered amongst
the most pervasive maladies of the ‘Indian Legal System’. As part of a concerted effort to inform,
contribute and participate in, the struggle to transform personal, individual and collective action
to secure for every person the most basic human right-justice, Vijay K. Nagaraj examines the social
bases of impunity through the specific case of Bhopal and suggests a way forward, looking at the
struggles of the Mazdoor Kisan Shakti Sanghatan. K.S. Sangwan looks at Khap Panchayats and the
administration of criminal justice in rural Haryana, drawing on extensive fieldwork in the region.
Introduction
xvii
He examines the intersections between the formal criminal justice system and community-based
systems, underscoring the complex interplay of identity, power and criminal justice in traditional
agrarian societies.
Section V examines the possibility of a human rights reconfiguration of criminal jurisprudence.
If the sovereign authority had to thus produce a moral society through criminal legislation, Ranabir
Samaddar observes, the issue was how to organise the entire process of legal and moral reproduction
of a desired society? This required not only disciplinary interventions and correctional methods
and institutions; but also a fascinating set of laws, which had to now posit the wisdom and science
of rational intervention against the native intelligence of crime, communication of crime, and
the circulation of crime. In short, the relation between society and crime had to be redefined. The
period of hundred years spanning the time between the last quarter of the 18th century and that
of the 19th century was spent in laying the foundations of an objective science of law and criminal
legislation by which an enlightened responsible regime would rule the country. His essay explores
what exactly is wrong with the gift of colonial enlightenment in the form of rule of law—the new
agency in the perennial story of crime and punishment. Conspiracy as an offence was introduced
to the Indian Penal Code in 1913 to deal with the rise of Indian Independence struggle and this
provision was constantly used by the British Indian Government and subsequently as an effective
weapon to discredit political dissent in independent India. K.G. Kannabiran examines the relationship between distributive justice, associational rights and the use of conspiracy in the law,
underscoring the potential of this nexus to erode constitutional and accepted liberal democratic
values in independent India. Notions of crime, the administration of justice and the nature and
purpose of punishment provide valuable insight into the very nature of a State, reflecting its compulsions, challenges and concerns at the time, while pointing towards the particular interests that
the State seeks to serve. In present day India, reform of the criminal justice system has been a
long-standing demand of many, to effectively address the growing incidence of crime in Indian
society. Unfortunately the call for reform has essentially meant the demand for ‘hardening’ of the
system, which also includes increasing the severity of punishment. This is epitomised by the report
of the Malimath Committee set up to suggest reform of the Criminal Justice System (CJS) in India.
Bikram Jeet Batra reflects on the political economy of crime and punishment in the post-Malimath
era. He examines changes in trends in the criminal justice system possibly brought about as a result
of change in the character of the Indian state from a colony to a democratic republic. How was
independent India’s understanding of punishment and crime, he asks, different from that of the
former colonial state? Was colonial emphasis on retribution and deterrence effectively done away
with, in favour of a more reformative view of punishment? On the contrary he argues, one witnesses
the ‘hardening’ of the criminal justice system and increased punishment, particularly with respect
to the award and the use of death penalty. In the concluding essay, Kalpana Kannabiran explores
xviii
Challenging The Rule(s) of Law
in very cursory fashion some constitutive problems in criminal law and also issues that have a continuing presence and relevance in an understanding of criminology from colonial times, although
the contexts in which they are now located have changed radically. This collection is one step
(certainly not the first), towards mapping the ways in which interdisciplinary research and human
rights activism might inform legal praxis more effectively and holistically.
The contributors are a diverse group—widely respected activists, advocates, bureaucrats, scholars
and practitioners—who share concerns on criminal justice systems and the need to entrench human
rights in the Indian polity. This volume is the result of our conversations around these concerns.
Together we offer this volume as a tribute to Professor Upendra Baxi, our comrade, fellow traveller
and friend in the struggle for social justice.
NOTES & REFERENCES
1. Baxi, Upendra. 1985. ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’, 1985
Third World Legal Studies 107, at p. 108.
2. Baxi, Upendra. 1985. ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’, 1985
Third World Legal Studies 107.
3. Some judgements [Supreme Court and High Courts] that make explicit reference to his work and draw legitimacy
from his writing are: Avinder Singh vs State of Punjab and Another 1979, All India Reporter (Supreme Court),
p. 321 [on the need to democratize legislative endeavours]. Bachan Singh vs State of Punjab, 1982 AIR(SC) 1325
[on arbitrariness of judicial imposition of capital punishment]; K.C. Vasanth Kumar and Another vs State of Karnataka,
1985 AIR(SC) 1495 [on reservations for Scheduled Castes, Scheduled Tribes and other Backward Classes]; Kumari
Anjana Mishra and Another vs Principal (K.M. Rustogi, M.L.B. College), Gwalior and Others, 1990 AIR(MP) 120
[on the need for craftsmanship in legal education]; P.V. Kapoor and Another vs Union of India and Another, 1992 (98)
Criminal Law Journal 128 [on social action litigation, state repression and death in police firing]. S.R. Bommai and
Others vs Union of India and Others, 1994 AIR(SC) 1918 [on defining secularism]; Kapila Hingorani vs State of Bihar
2003 (116) SC 133 [on the impact of globalisation and developmentalism in the context of state irresponsibility,
hunger and homelessness]. Apart from this, his interventions (collaborative for the most part) in courts especially on
behalf of persons who were vulnerable to or had suffered from unthinkable violence have been critical for movements.
For instance, the open letter on the Mathura judgement co-authored by him: An Open Letter to the Chief Justice
of India (1979) 4 Supreme Court Cases 17–22, his petititon to the Supreme Court on the conditions in the Agra
Protective Home, Dr Upendra Baxi vs State of Uttar Pradesh and Another, 1983 (2) SCC 308 and his appointment as
commissioner to investigate the labour protections for persons engaged in skinning dead animals, Gulshan S/O Kallu
and Others vs Zila Parishad, Etawah, Uttar Pradesh and Another 1981 AIR(SC) 1668.
4. Baxi, Upendra. 2003a. ‘An Honest Citizen’s Guide to Criminal Justice System Reform: A Critique of the Malimath
Report’, in The (Malimath) Committee on Reforms of Criminal Justice System: Premises, Politics and Implications for
Human Rights, New Delhi: Amnesty International India, 2003, p. 32. Also, his ‘Notes on Holocaustian Politics’,
Seminar, May 2002, no. 513.
5. Ibid., p. 9.
6. Baxi, Upendra. 2003b. ‘Foreword’, Human Rights Violations Against the Transgender Community: A Study of Kothi
and Hijra Sex Workers in Bangalore, India, PUCL-Karnataka, p. 6.
Introduction
xix
7. Baxi, Upendra, ‘A Perspective from India’. Available online at http://www.uu.nl/uupublish/content/12-08.pdf,
p. 76, accessed on 26 March 2008.
8. Baxi, Upendra. 1988. ‘Introduction’, in Upendra Baxi (ed.), Law and Poverty: Critical Essays, p. viii. Bombay:
N.M. Tripathi Pvt. Ltd.
9. Baxi, Upendra. 2006. ‘Development as a Human Right or as Political Largesse? Does it make any difference?’
Founder’s Day Lecture, 18 April 2006, Madras Institute of Development Studies, Chennai, (Revised and enlarged
22 May 2006.), pp. 22–23.
10. Baxi, Upendra. 1982. Crisis of the Indian Legal System, p. 8. Delhi: Vikas.
11. Baxi, Upendra. 1999–2000. ‘Constitutionalism as a Site of State Formative Practices’, Cardozo Law Review,
21: 1183–1210. See also, Baxi, Upendra. 2005. ‘The War on Terror and the “War of Terror”: Nomadic Multitudes,
Aggressive Incumbents, and the “New International Law”‘, Osgoode Hall Law Journal, 43(1&2): 7–43.
12. Baxi, Upendra. 2002. The Future of Human Rights, p. 31. New Delhi: Oxford University Press.
13. Ibid., p. 87.
14. Baxi, Upendra. 2007. ‘The Promise and Peril of Transcendental Jurisprudence: Justice Krishna Iyer’s Combat with
the Production of Rightlessness in India’, in C. Raj Kumar and K. Chockalingam, (eds), Human Rights, Justice, and
Constitutional Empowerment, p. 20. New Delhi: Oxford University Press.
15. Thereby treading paths not worn down by ‘[t]he theoretic indigence of Indian legal education and research’
(Baxi 2007: 8), and striking a balance in the process between ‘the materiality of human violation’ and the conceptual and social histories of colonialism. Baxi, Upendra. 1998. ‘Voices of Suffering and Human Rights’, Transnational
Law and Contemporary Problems, 8(Fall): 125–69.
xx
Challenging The Rule(s) of Law
SECTION I
The Construction of Crime and Criminality
2
Arvind Narrain
1
Laws of Metamorphosis: From Nomad
to Offender
Meena Radhakrishna
In the late 19th century, the emerging disciplines of criminology, phrenology and anthropometry
boasted that the ‘illegible’ face of the criminal could now be recognised and interpreted by scientists
and criminologists. A few decades earlier, Henry Mayhew, the celebrated author of London Labour
and the London Poor: the Condition and Earnings of Those that Will Work, Cannot Work, and Will Not
Work complemented his documentation of the distribution of crime with narratives provided by
professional criminals.1 ‘The use of such “ethnographic” material was a major contribution to the
development of criminology as a social science.’2 Mayhew called himself a ‘traveller in the undiscovered country of the poor’. In this writing, he recast slum-dwellers as ‘tribes’ who might be observed
in an anthropological manner, and as the slum-dwellers became picturesque, they also came to be
seen as irretrievably criminal.3
This chapter examines some of Mayhew’s assertions, along with other contemporary writings,
showing reverberations of their influence in the administrative handling of nomads and other
tribes in the colonies.
Mid-to-late 19th century writings show a certain ‘evolution’ of a criminal—if one may put it
that way—as a nomad evolves into a criminal through a process of comparison and association.
The first of course was a conflation by Mayhew himself of the category of the ‘poor’ of an imperial
city with tribes of a colony. Next, if the nomadic tribes of the colonies could be shown to be
similar to the vagrants of London, by a certain leap of logic, the nomadic tribes must be as criminal
as the criminal vagrants. Furthermore, since the Irish comprised the majority of the criminal
vagrants, similarities could be drawn between the Irish and the criminal nomadic tribes, and so
on and so forth.
4
Meena Radhakrishna
And thus, the mathematical formulation unfolded in different permutations and combinations, some of the main equations being as follows: A ‘foreign’ (colonial) nomad is a rogue who is
equal to an ape plus vagrancy; a vagrant is equal to a colonial thug plus vagabondage; a vagabond
is equal to a colonial savage with murderous customs; the savage is the same denomination as an
ape; an ape is manifestation of a lower race; a lower race is what constituted the ‘lawless’ aborigines
all over the world.
Furthermore, a criminal European gypsy is equal to an Indian gypsy; a criminal Indian gypsy
is equal to a criminal Irish—both are essentially no more than eternal vagrants and migrants.
Irish habitual criminals are likened to the savages of the colonies and to Indian nomadic tribes,
who are scientifically proven to be apes and lower races. As work-shy vagrants and beggars, they
join the socially homogeneous unitary category of the ‘poor’. From here, they finally re-emerge as a
special type of criminal who were to be legislated against by the state—namely, beggar offenders.
Some links in the chain could be supported scientifically, or buttressed with religious texts. Sometimes, the two were mixed with impunity, as we shall next see. There is a mind-boggling morass
of illogic, some of the strands of which are sought to be untangled here step by step.
SOCIAL EVOLUTION AND NOMADISM
In 1843, Thomas Carlyle wrote:
…The Nomad has his very house set on wheels; the Nomad, and in a still higher degree the Ape,
are all for ‘liberty’; the privilege to flit continually is indispensable to them…. The civilised
man lives not in wheeled houses. He builds stone castles, plants lands, makes life long marriagecontracts; has long-dated hundred-fold possessions, not to be valued in the money-market;
has pedigrees, libraries, law-codes; has memories and hopes, even for this Earth, that reach over
thousands of years.4 [Emphasis added]
This is how the evolutionary doctrine was applied to the nomads. The implication was not
only that the nomads were closer to apes, in that they were not bound by any rules of society—and
were for unmitigated ‘liberty’—but also that nomadism was an earlier civilisational phase, and so
by definition an attribute of an early stage of human evolution. The nomad’s life was the antithesis
of civilisation itself.
Hansen points out that when detailing the circumstances conducive or deleterious to civilisation in The Descent of Man, Charles Darwin wrote, ‘Nomadic habits, whether over wide plains,
Laws of Metamorphosis
5
or through the dense forests of the tropics, or along the shores of the sea, have in every case been
highly detrimental (to civilisation)’.5
Mayhew extended this argument and considered in his writings that society consisted of two
races, ‘the wanderers and the settlers’. Of the former, he had this to say:
Whether it is that in the mere act of wandering, there is a greater determination of blood to
the surface of the body, and consequently a less quantity sent to the brain, the muscles being
thus nourished at the expense of the mind, I leave physiologists to say. But certainly be the
physical cause what it may, we must all allow that in each of the classes above mentioned, there
is a greater development of the animal than of the intellectual or moral nature of man, and that they
are all more or less distinguished for their high cheek-bones and protruding jaws—for their
use of a slang language—for their lax ideas of property—…their repugnance for continuous
labour—their disregard of female honour—their love of cruelty…—and their utter want of
religion.6 [Emphasis added]
LONDON POOR AND PRIMITIVE TRIBES OF COLONIES
To Mayhew, there were roguish elements in British society as nefarious as—and thus comparable
to—any number of ‘foreign’ nomads.7 He makes explicit comparisons between the London poor
and Africans, Asians and Native American Indians. His opening chapter, entitled ‘Of Wandering
Tribes in General’, introduces us to the idea that London’s street folk might be closer to the primitive
tribes of Africa and Asia than to their own countrymen.8
Of the thousand millions of human beings that are said to constitute the population of the entire
globe, there are—socially, morally, and perhaps even physically considered—but two distinct and
broadly marked races, viz., the wanderers and the settlers—the vagabond and the citizen—the
nomadic and the civilized tribes…. The nomadic or vagrant class are all an universal type, whether
they be the Bushmen of Africa or the “tramps” of our own country.9 [Emphasis added]
Writing with John Binny, Mayhew repeated these assertions in The Criminal Prisons of London
and Scenes of Prison Life: ‘If Arabia has its nomadic tribes, the British Metropolis has its vagrant
hordes as well. If the Carib Islands have their savages, the English Capital has types almost as brutal
and uncivilized as they. If India has its Thugs, London has its garrotte (sic) men’.10
6
Meena Radhakrishna
Interestingly, the term ‘our criminal tribes’ was used by Mayhew to define ‘that portion of our
society who have not yet conformed to civilised habits’. Such sections were likened to the gypsies,
who preferred to indulge their appetites when they could, resorting to plunder rather than submit
to the discipline of steady work.11
As has been pointed out recently by Kavita Philip, the suggestion implicit in this is that metropolitan London social councils ought to take a leaf out of the colonial mission’s book: Edwin
Chadwick (who drafted the famous report of 1834 on Poor Laws) had, in fact, explicitly recommended that the lower classes ought to be governed as if they were a colony, and not part of the
same population as upper-class Londoners.12
At any rate, according to Mayhew, the comparable groupings were of nomadic tribes, Bushmen,
savages and Thugs in the colonies; and vagrant hordes, brutal/uncivilised tramps and garotte men
in London. Such groupings were widely acceptable: in fact, the idea was recycled through various
literary works. It has been pointed out that ‘most early Victorian social novelists, regardless of their
benevolent, reformist intent, nonetheless conceived of the poor as “a nation of savages, a constant
reproach to the apparent civilisation of the rest of society”.’13 Martin Weiner has written that
‘intensified images of domestic savagery were paralleled by diminished tolerance for the ways of
savages abroad…. Dickens’ 1853 denunciation of the idea of the “noble savage” made hysterical use
of current ethnological descriptions: “I call a savage…cruel, false, thievish, murderous; addicted
more or less to…beastly customs; a wild animal…(who is) bloodthirsty”.’14
VAGABOND SAVAGE
One of the more astute observers of nomads and vagrants, Adam Hansen, commented that Mayhew
coined the term ‘vagabond savage’ in his monumental work London Labour and the London
Poor. According to him, this work ‘represents a development in ways of thinking about rogues, a
development that involved the explicit interrelation of discourses on itinerancy, class, criminality,
race, colonialism and morality in the context of writing about an empire’s capital’.15
The term ‘vagabond’ could simply be a descriptive one, acknowledging homelessness, beggary
and lack of employment opportunities.16 As far as ‘savagery’ was concerned, the term had multiple
antecedents: it referred essentially to the colonised set of people who had been shown by research
to be more allied to savages, with primitive, bloodthirsty customs that bordered on the criminal.
Mayhew reported ‘unnatural crimes’ in India, and suggested that Indian customs institutionalised
immorality.17
The anthropology of the day considered the people in question as savages and their antiquated customs, being criminal, needed to be legislated against or suppressed with force.18 Here it
Laws of Metamorphosis
7
might be useful to briefly examine the genealogy of the term ‘savage’ in anthropological literature.
John Lubbock, an eminent anthropologist and one of the early presidents of the Anthropological
Institute, published his popular Prehistoric Times in 1865. He studied ‘modern savages’ like the
Andaman Islanders, Australians and Maoris. Some of his chapter titles included Horrible Rites;
Parricide; Cannibalism; Cruelty; Infanticide; Absence of Cleanliness; Curious Customs; Low Ideas
of Deity; Witchcraft; Ideas of Decency and Virtue; and Character.19
This tradition of ethnographic research on colonised societies continued. Almost a half-century
later, Edgar Thurston’s Ethnographic Notes on Southern India had 18 topics, some of them of the
following nature: Omens; Evil eye; Charms; Animal superstitions; Sorcery; Torture in bygone days
and a few stray survivals; Slavery; Making fire by friction; Fire walking; Hook swinging; Infanticide; Meriah human sacrifice; Deformity and mutilation; Earth eating.20
The savage and the ape were connected by the theory of evolution. Darwin’s revolutionary
and progressive thesis on the ape ancestry of humans had its influence on the emerging discipline of anthropology in a distorted manner—the theory had to be applied in such a way that
the civilised Europeans were not implicated as far as the descent from the apes was concerned.
It has, in fact, been pointed out that ‘by making so much of the gulf between the higher and
lower races, the popularizers (of Darwin’s theory) were perhaps unconsciously taking some of
the sting out of the ape theory. The lower races were made to bear the greater part of the burden
of animal descent, thus sparing cultured whites some of the humiliation of being no more than
higher apes’.21
In the construction of a savage, the legitimacy of science would be buttressed with the authority
of mythology. In the Indian context, an example of the application of Darwin’s findings illustrates
the way in which religion and Darwinism could be reconciled. In the ethnographical writings at the
end of the 19th century about Indian aborigine people, a British administrator, James Samuelson
copiously used Darwin’s scientific terminology. He treated the Hindu religious scriptures as if they
were history texts, which Darwinian input brought up to date. The result was that arguments from
the Vedas were reinforced with evidence from Darwin.
Speaking generally of the aborigines of India, we have sacred traditional accounts which
represent them to have been savages allied to the apes…. The Aryans called them Dasyus, or
enemies…in fact, their description is almost identical with that of some of the Andaman
Islanders of the present day. They called them eaters of raw flesh, without gods, without faith,
lawless, cowardly, perfidious and dishonest…. The Brahmins described the Dasyus or aborigines
as Bushmen or monkeys.… In Ramayana, the monkey general Hanuman…plays a prominent
part…. A comparison of the accounts that are given of (Dasyus) in the Vedas with the Indian
aborigines of today shows conclusively that some of them must have possessed a very low bodily
8
Meena Radhakrishna
and mental organisation—indeed, that they were a more debased type of beings than what is now
called mankind.… In the existing aborigines, we find here and there marked peculiarities which
point to a possible descent from some lower type of animal existence: the frequently recurring ear
point of Darwin, peculiar to certain apes, the opposable toe characteristic of the same animal;
the long stiff hair of biped or quadrupeds in unusual parts of the body; the keen sight, hearing
and smell of some of the lower animals, coupled with mental qualities and habits…which can
hardly be called human.22 [Emphasis added]
Thus, contemporary aborigines were shown to have some of the characteristics of apes that
Darwin described. In other words, the theory of evolution was put to a unique use by the British
ethnographer/administrator in that he completely ‘brahminised’ a Darwinian concept, apart from
ostensibly showing the connections between the lower races, apes, monkeys, Bushmen, Andaman
Islanders and Indian aborigines. Such people were also considered Godless, lawless, perfidious and
dishonest, ready to be officially declared as criminals. The point being made here is that the word
‘savage’—via Darwinian evolutionary theory—already carried the promise of the inevitability of
criminal tendencies.
In the event, a sympathetic cord was struck in the British administrative heart with the kindred
Aryans who have had to deal with such enemies in the distant past, which the British administrator
was also finding rebellious in his own day. During the 19th century, the British administrator in
India was anyway inclined to think of indigenous people as criminals and Dasyus.23
CRIMINALS BY BIRTH: EUROPEAN GYPSY, INDIAN GYPSY
Andrew Major writes that theories advanced in the mid-19th century about the possible origins of
the wandering criminal tribes included a connection with the Gypsies of Europe. The authors of the
Punjab Administration Report of 1862–63 referred to the criminal gypsy tribes of the Punjab:
…who…are to be found in all parts of the world, presenting the same features, and even to
some extent possessing the same dialect…. European gypsies are known to have originated in
north-western India, being apparently descended from a lowly caste of genealogists and minstrels
called the Mirasi or Dom (from the latter are derived the terms Rom and Romany)…. 24
Another researcher, Mark Brown, pointed out, ‘One of the longest standing presumptions
about India’s wandering tribes and castes was that they were the forebears of Europe’s gypsies, a
race that British officers and administrators knew only too well to be criminals by birth.’ Brown
further narrated how a certain Captain David Richardson had attempted to draw together knowledge of gypsy-like groups in Calcutta and to consider their similarity to the Gypsies of Europe.
Laws of Metamorphosis
9
He noted that the people concerned were ‘particularly suspected of being great thieves; many of
them I understand are daily punished for theft, and in their capacity as Dacoits, are, no doubt, often
hanged’. Overall, he found great similarity between what were essentially two groups of the same
race. Richardson asserted that their language, their employments, the absence of fixed habitations,
and the fact that both groups were considered thieves showed that they were one and the same
race, of which the wandering tribes were the Indian family.25
In matters of religion they appear equally indifferent: and as for food, we have seen that neither
the gypsies nor (the Indian gypsies) are very choice (sic) in that particular; and though I have
not obtained any satisfactory proof of their eating human flesh, I do not find it easy to divest
my mind of its suspicions on this head. Indeed one would think that the stomach that could
receive without nausea a piece of putrid jackal, could not well retain any qualms in the selection
of animal food. 26
Brown says of the Indian part of the gypsy family:
On the one hand they belonged to an ancient racial line, on the other, the presumed permanence
of Indian social relations obviated the need to know what function they had played in pre-colonial
native society and indeed, how British incursions into native politics and society might have
affected their means of livelihood. Knowledge of gypsy racial stock was principally of value for
the assistance it might provide administrators now developing anthropometric systems for the
identification of hereditary criminals.27 [Emphasis added]
A website made available by a section of the Roma community in Europe points out that
publication of Cesare Lombroso’s influential work, L’uomo delinquente (Criminal Man), in 1874
contained a lengthy chapter on the genetically criminal character of the Roma. The book was translated into many languages, including German and English, and had a profound effect on Western
legal attitudes towards gypsies.28 Lombroso’s thesis might have reverberated as well in the Indian
administrative thinking of the time.
In 1880, the Inspector General of Police for the Central Provinces set about reviewing all ethnological and anthropometric data that had been built up in police files and intelligence gathering
exercises since the 1840s, and concluded that the habitual predatory tribes were ‘the Oriental
representatives of the tent-loving gypsies of Europe’.29
Incidentally, the phrase ‘tent-loving gypsy’ itself is symptomatic of the romantic literary attitudes about these groups which began to circulate at the same time as new administrative efforts
were made to convert gypsies to a sedentary lifestyle.30 While the literary imagination celebrated
them for their dark, attractive looks, their ‘healthy’ outdoor life in tents, and their bright costumes
and jewellery (as in the case of the Indian Banjaras), the gypsies were confronted in reality with fear
10
Meena Radhakrishna
and dread. In fact, in their leisure time in India, a number of English ladies drew portraits of
Banjara men and women in a romanticised light while their lawmaking menfolk made them out
to be ferocious criminals; also, the Banjaras were legally declared criminal tribes by the British
administration.31 Their European counterparts suffered the same fate through history.
Exoticised accounts of gypsies, both in Europe and in India, then, coexisted with devastating
penal codes to contain what was considered the most troublesome gypsy characteristic—genetic
criminality.
CRIMINAL INDIAN GYPSY, CRIMINAL COLONIAL IRISH
Through the double link of criminality and wandering habits common to both, the European
criminal gypsy was seen to be kin to the Indian criminal gypsy. The Irish criminal and the Indian
gypsies were linked, too, in an allied but another distinct train of thinking. This association in the
British mind of Irish habitual criminals with Indian criminal gypsies might also be partly explained
by the fact that in English accounts up to the 18th century, gypsies were generally lumped together
with Irish travellers and vagrants.32
Mayhew in his The Criminal Prisons of London asserted that 90 per cent of London’s habitual
criminals were ‘Irish Cockneys, that is, persons born of Irish parents in the Metropolis’.33 Mayhew’s
London Labour and the London Poor, in fact, has an entire chapter devoted to ‘The Street Irish.’34
While examining the various writings of the period on poverty, criminality and vagrancy, one
is struck by the fact that this connection was constituted, in large measure, through encounters
over the centuries with the many Irish in London and other cities of England. Tramps, vagrants
and vagabonds had a large Irish component on the streets of London.35
A common factor between the Indian and the Irish was that they occupied the same rung on
the moral evolutionary scale. Both India and Ireland were judged to be ‘moral fossils’.36 This was in
addition to the belief that contemporary British writers held that the Irish, like the savages of the
other colonies, including the primitive aborigines in India, belonged to a primitive racial type.
In 1847, Punch referred to the Celts as ‘the missing link between the gorilla and the Negro’.37 It is
no accident that Punch was founded by Henry Mayhew in 1841.38
As Kavita Philip writes:
It need not surprise us that British ethnography represented most groups on the margins of
the empire as racially degraded and inherently backward. It is remarkable, nevertheless, how
similar the rhetoric of racialisation of the Irish, a white population, was to the language used to
Laws of Metamorphosis
11
characterise non-white colonial subjects in Africa and Asia. For example, the category ‘Africanoid’
was used to describe each of these groups, its validity being quantifiable by the ‘index of
nigresence’. This was supposedly a quantitative measure of primitivity, devised by anthropologist
James Beddoe, who, in three decades of anthropological work in Britain, claimed to have
established, among other things, the ‘africanoid’ nature of the Celt. The ‘primitive’ origins of
Celtic physiognomy and culture were the subject of numerous articles in the Anthropological
Review and the Journal of the Ethnological Society through the 1860s.39
Richard Lebow notes: ‘By the nineteenth century the major characteristics attributed to the
Irish—indolence, superstition, dishonesty and a propensity to violence—had remained prominent
in the British image for over 600 years.’40
The extent of British disgust with the established different habits and customs in its colonies
can be gauged from the accounts of authors who have studied the English reactions to Irish social
and cultural differences. Charshee McIntyre, for instance, sets out in detail the prejudices that the
English colonist had towards the Irish. Prejudices about Irish diet, social customs—even practices
like keeping a cow—criminalised in the eyes of the administrators a whole people.41 The prejudices
that the British administrator in India held about the different cultural practices of Indian nomadic
communities make a fascinating parallel with the British attitudes towards the Irish.42
And thus, in the 1860s, Andrew Major noted:
Several Punjab district officers…proposed reclaiming the (gypsy) tribes by forcibly locating
them in settlements on government waste land, under police control, in the expectation of
‘inuring them to steady habits of agricultural labour’. Such a plan was not new, having been
attempted—with indifferent results—in other parts of India and the principles behind it were
identical with those regulating the third or intermediate stage of imprisonment of habitual
criminals in Ireland.43 [Emphasis added]
GYPSY AS VAGRANT: THE CRIMINALISED ‘MENIAL’ WORKER
An attempt has been made elsewhere to understand the British administrator’s thinking in India
behind the institution of the Criminal Tribes Act, 1871.44 In spirit, this Act was succeeded in independent India by the Habitual Offenders Act, 1952. The superficial difference was that the former
targeted whole communities, while the latter aimed at individuals belonging more or less to the same
communities. Both Acts were influenced by the notion that the nomadic tribes in India were akin
12
Meena Radhakrishna
to the gypsies and vagrants in England, and both Acts aimed to punish mobility in ways similar to
the vagrancy acts in England.
There are two propositions here: first, the discussion on nomadic communities in India, even in
the post-independence period, drew clearly from the vagrancy laws in England; second, that there
was no distinction made by the policymakers in the two countries between what nomads or gypsies
did for a livelihood and the work of vagrants.45
While it appears that nomadic groups in colonial India and gypsies in England were both treated
as vagrants and criminals, they were rounded up in England under the vagrancy acts and in India
under the Criminal Tribes Act. The process of the restriction on movements of nomadic groups
in India through the Criminal Tribes Act is discussed in detail elsewhere.46 What becomes clear
from a study of England’s vagrancy laws is that they were used to punish gypsies across centuries.
Old Bailey court records in London show that throughout the Late Medieval and Early Modern
periods, gypsies were subject to ‘profound legal oppression’ across Europe. In England, they were
treated under the 16th century vagrancy laws, and were specifically included in the 1597 Vagrants
Act.47 Leo Lucassen has pointed out that fear of the mobile poor, especially those who were labelled
as vagrants, seems to have been one of the main reasons for the professionalisation of the police
in Western Europe, especially in England. Police were meant to ‘repress vagrancy (and) the most
important means for the police was the Vagrancy Act of 1824, characterized as the most pernicious
piece of legislation against gypsies and travellers in the 19th century’.48
The question of what a vagrant in a particular society, at a particular historical juncture, did for a
livelihood is an important one. Lucassen wrote that as far back as the 16th century, the occupations
of a vagrant bore a strong resemblance to those of people at the lower levels of small town society of
the time, which is a very different picture from the bizarre trades usually accorded to the vagrants
by contemporaries. Vagrants were most commonly employed as labourers and servants.
They were engaged in the most common, poorly paid and precarious trades of the period.
It thus becomes hard to distinguish them from casual labourers, except that vagrants were homeless,
on the move and subject to the rigours of the law.49 [Emphasis added]
Another author, Gareth Stedman-Jones, found in late 19th century London that vagrants and
labourers were overlapping social groups, as both groups were the product of similar economic
and social circumstances.50
In 19th century London, the patterns of work officially attributed to the gypsies, too were much
more limited than their actual occupations. Many of the trades and descriptions associated with
gypsies and travellers appear in the list of occupations found in contemporary court records, and
research suggests that these occupations were mere labels given to the gypsies while they were, in
fact, engaged in a variety of other casual work along with the other local poor.51
Laws of Metamorphosis
13
In a startlingly parallel vein, Andrew Major, an observer of late 19th century colonial India,
wrote:
The particular tribes or castes who came to be declared by the British to be hereditary criminals
were, at the local level, virtually indistinguishable from the dozens of menial castes, both wandering
and settled, who had a recognised (albeit low) place in rural Punjabi society….52 [Emphasis added]
The issue is made more complicated by the fact that depending on the state of the economy
and the vagaries of the labour market, supposedly ‘decent and sedentary’ workers also did casual
work, and relocated from time to time in search of work. Hansen brings to our notice the important point:
In Victorian society at large it was no less difficult to isolate the illicitly nomadic from the decent
and sedentary. The poor shared lives of intermittent mobility and stasis, shared casual labour,
shared economic misfortunes, and shared risks of illegality. Their numbers swelled with seasonal
shifts and wage and price changes.53
And so did the numbers of so-called vagrants and ‘criminals’. In other words, although the
bipolarity of the ‘settled’ and the ‘nomadic’ have, prima facie, always been a matter of commonsense,
in fact the settled were also nomadic at various times of the year. As Raphael Samuel writes of
Victorian English cities:
The tramp, the navvy, and the pedlar might be one and the same person at different stages of
life, or even at different seasons of the year…. Even skilled workers were forced into itinerancy
throughout their careers: the nomadic phase and the settled were often intertwined.54
Regardless of the conflating of the terms ‘vagrant’, ‘gypsy’ and ‘nomad’ in officialese, it is important to make a firm distinction between a gypsy/nomadic group and so-called vagrants. People
in both categories carried different kinds of baggage. As far as Indian nomadic tribes are concerned, research indicates that they did not wander aimlessly without work, which the meaning
of vagrancy implied. What has been said of a particular Indian nomadic community is probably
true of nomadic communities as a whole, with variations in their movements depending on their
particular professions. Raphael wrote:
(In 19th century British India), the nomadic community (of Koravars) were constantly moving
from one part of the Presidency to another for large parts of the year. They would camp in a
particular place, stay for some time, and move on in pursuit of their trade in coastal salt and
other items. The camping period would naturally be affected by weather conditions—they could
14
Meena Radhakrishna
not sell salt at times of rain; the time of the year—the grain harvest was of crucial importance
as they often bartered salt for grain; availability of casual work—they could work temporarily as
agricultural workers, and also by other factors like availability of date palm leaves and bamboo
in a particular area, for the itinerant communities were invariably basket and mat makers.
Difficulties posed by the terrain may have been another factor (the community used only asses
and bullocks for transporting their merchandise), for sales were done primarily in the interior
villages where trade through wheel traffic would not compete.
It is important here to point out that the ‘wandering’ or trading nomadic communities could
not have been aimless, but the administration did not care to find out the logistics of their
movements. They always had definite trade routes, depending on the demand for their wares
and on the cycle of annual festivals and fairs. Their movements also depended on the salt manufacturing cycle, the most important item of their trade. Their routes and schedules of stopping
and moving were thus fixed and cyclic.55
It seems clear by now that nomadic communities in India, like the gypsies in England, were
engaged in a larger variety of occupations than the administrators conceded. It is also clear that
given their purposeful movements, the term ‘vagrant’—defined as homelessness, being without
work and wandering aimlessly—did not, in reality, fit either set of people. A more significant
conclusion here is that, from time to time, gypsies and nomads shared menial occupations with
sedentary workers, who in turn had occasional occupational mobility in common with gypsies and
nomads. This overlapping resulted in considerable confusion for the lawmakers, who perceived
no differences between these clearly discrete categories of people. A corollary to this confusion was
the ever-expanding legislative category of the ‘vagrant’, an amalgamation of the casual menial worker,
the gypsy and the nomad.
THE CRIMINALISED ‘MENIAL’ WORKER: COLONIAL MIGRANT
AS VAGRANT
Vagrancy was, then, considered a criminal offence through the centuries in England, in 19th century
British India, and in post-independence 20th century India as well. It seems the administration
confounded the gypsy with the vagrant because their occupations did, indeed, overlap considerably
from time to time; in effect, this criminalised the gypsy and, by an extension of the same logic,
the nomad in British India.
It must be emphasised that vagrancy laws also included, in large measure, the migrant, with
whom the gypsy again shared both occupations and mobility. To reiterate Lucassen here, ‘Fear of
the category of mobile poor seems to have been one of the main reasons for the professionalisation
Laws of Metamorphosis
15
of the police in Western Europe, especially in England, as crime was mainly associated with migrants’
[Emphasis added].56 The important point to be noted here for our purposes is the criminalisation
of the ‘gypsy’ through this distinct category’s conflation with the vagrant and the migrant, both
willfully and inadvertently.
Research has begun to establish that in England as well as in India, when impoverished people
migrated to cities and towns, where they remained homeless and unemployed, they were not distinguished administratively from gypsies/nomads or vagrants. In a recent study, in a chapter entitled
‘Eternal Vagrants’, Lucassen has addressed the puzzle of the administrative collapsing of the gypsy,
migrant and vagrant into a single category. His work is an important input into our understanding
of the roots of this confusion in a number of societies across the centuries.
Following studies by Chevalier on Paris57 and Stedman-Jones on London, Lucassen shows that
from the end of the 18th century, internal migration increased in the countries of Western Europe.
Due to the ongoing commercialisation of the agricultural sector and the ‘jerky’ nature of industrialisation, jobs were insecure, leading to the growing mobility of labour.
In both cities the ruling classes saw the poor immigrants as pathological nomads, who did not want
to work and would live by theft and begging alone. The image of these new barbarians did not differ
much from that of vagrants and they were often not differentiated by the central authorities.58
In fact, gypsies were also affected by government attempts to regulate pedlars and hawkers
by the issuing of licenses, because they shared these occupations alongwith the migrants.59
These negative perceptions of the migrant were not helped by the fact that many of these
so-called vagrants ‘wandering’ into English cities were, in fact, Irish immigrants. Generally, those
Irish immigrated to England for employment for whom there was little or no demand in their own
country. Much of the migration was, in any case, a result of British colonial policies in Ireland.
As Hansen put it:
The material reality of…colonial plantations in Ireland actually induced vagabondage as much as
it profitably cleared lands and civilized a supposedly barbarous populace. Exiled Ulster ‘peasants’
ended up as vagrants on the streets of the London, constituting a ‘great eyesore’….60
Such migrants were paid at a wage rate lower than that of the ‘lowest description of the native
labourers’. The work itself was said to be ‘of the roughest, coarsest and most repulsive description,
and requiring the least skill and practice; and their mode of life (was) in general on a par with that
of the poorest of the native population, if not inferior to it.’61
As has been discussed in the preceding sections, the gypsies engaged—apart from their
‘traditional’ work—in occupations at the lowest rung of the economy. In the administration’s
books, then, the gypsies, who were already a part of the general category of the criminal mobile
16
Meena Radhakrishna
poor, were now confused with the migrants as much as they with the vagrants because of the common factors of mobility and shared occupations. The anxiety about the mobility and ‘self–evident’
criminality of the migrant, as Lucassen has shown, was the genesis of the notorious Vagrancy Act,
1824, which indiscriminately rounded up the gypsy, the vagrant and the migrant.62
NON-WORKING VAGRANT AS SHIRKER AND CRIMINAL
So far, we have seen that the Indian nomad category consisted of people employed in various kinds
of menial/casual/low-paid work. Many of the nomadic communities in question had additional
traditional occupations and skills—of acrobats, musicians, tightrope walkers, street dancers and
so on. As described in the foregoing sections, the Indian nomadic communities carried baggage
historically attached to the European gypsy, vagabond, a lower race, a savage tribe, a colonial Irish
subject, a vagrant and an immigrant/migrant.
It is interesting to note in the official records the contradictory views about the nomadic
communities. Through the late 19th and early 20th centuries, while one section of British administrators discussed the nomadic tribes as the ‘dangerous classes’ of India, another section was well
aware that many of the traditionally ‘wandering’ groups were law-abiding and productive visitors
to village societies. Even outcaste communities were recognised as being ‘exceedingly industrious
and not at all given to crime’.63 However, through a process of accretion of labels, nomadic communities as a category were progressively moving towards being declared criminals. It is important
to mention here that this was made possible partly because, the definition of ‘work’ was different from
that of the earlier decades and eras. This definition was rapidly changing in a society transformed
under colonialism.
Around the second decade of the 20th century, the Salvation Army, a missionary organisation, was put in charge of some nomadic communities in India which had been declared ‘criminal
tribes’ a few years earlier. One of the serious accusations against these nomadic communities
recorded by this agency entrusted with their uplift was that they were idle, lazy and not keen on
work. Booth Tucker, head of the Salvation Army in India, wrote of them, ‘When we asked them
to till the land, or work in a factory, they were shocked. Work? They said, we never work, we just
sing and dance.’64 The idea had been to reform criminals through work, under the moralising
influence of the missionaries. This is evident in the title of the booklet where the above discussion
was taking place: Criminocurology or the Indian Crim and What to do with him.65
As words to such effect were being put in the mouths of the concerned communities, their
occupations had already been perceived by the administrators to be undesirable aspects of
an underclass which should have, by now, been gainfully employed in the colonial economy.
Laws of Metamorphosis
17
Entertainment through singing and dancing was no longer considered work. In effect, what was
being discussed here was not whether these communities worked or not but the nature of their
work. Their work was independent, not time-bound and, most important, was not wage work.
As earlier research has shown, such communities ended up being slowly ‘weaned’ away from their
traditional occupations by the use of certain sections of the Criminal Tribes Act, 1911, and were
forced to work in British-owned factories, mines, plantations, quarries and mines.66
NOMADIC TRIBES IN INDEPENDENT INDIA
Habitual Offenders
Within a few days of India getting independence, a new category, ‘vagrancy: nomadic and migratory tribes’, was suggested and adopted as an entry under the Concurrent List of the Constitution
of India.67 This entry has remained a part of the Constitution. The important point for our purposes is that, like the European lawmakers, their counterparts in independent India too conflated
vagrancy, nomadism, migration and tribes.68
Soon after Independence, this is what the Criminal Tribes Enquiry Committee, 1949–50, had
to say:
As regards Gipsies, we feel that till they settle down on land, they will continue the life of crime.
We propose that effort 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.69
The Vagrancy Act, 1824 in England could have served as a model for a potential Habitual
Offenders and Vagrants Act in post-independent India of the 1950s. Following English law, Indian
officials considered vagrancy to be a serious enough offence for it to be clubbed together with
‘habitual offending’ of other kinds. The Committee envisaged a Habitual Offenders and Vagrants
Act meant to contain provisions to deal with three categories of Habitual Offenders, one of which
was ‘vagrants without any settled occupation, who lead a life of crime, prostitution and idleness.’70
Once again, not only was the nomad or the gypsy treated as synonymous with the vagrant, Indian
vagrancy was being again defined in much the same way as European one: lack of occupation, shirking
honest work and proneness to criminality.
Such an Act never actually materialised; what did emerge was a Habitual Offenders Act, 1952
which left ‘vagrants’ out of its purview, the reasons for which omission will be speculated upon next.
18
Meena Radhakrishna
At any rate, this Act in free India is an exact successor to the colonial Criminal Tribes Act, 1871,
except that it assumes an individual to be criminal, rather than whole communities.
Beggar Offenders
The changing perception of what constituted work was just one of the reasons why nomads got
transformed into wage workers or defined as criminals. One of the milestones in the metamorphosis
of a gypsy/nomadic community to offender groups according to law also came from the official
conflation of vagrant and beggar—lazy, wilful shirkers whom Mayhew would have happily classified
among those who will not work. As is evident in the foregoing sections, the so-called vagrants
in European societies were a heterogeneous lot, and included gypsies. They were categorised—
summarily—as the ‘poor’, mostly eking out a precarious living through low-paid work. Obviously,
such groups and communities were not always able to find work, which was as sporadic as it
was varied.
It is interesting to note in this context that for centuries there was a consensus in administrations both in England and elsewhere that such ‘vagrants’ had no occupation because they did not
want to work. It followed, then, that such people would either be drawn to criminality or to beggary
or both. The same train of thought that concluded that a gypsy was a vagrant could then declare
as a corollary that, a gypsy was a shirker and hence must live by crime. A perceptive commentator
on this subject had this to say:
The distinction between the man who is unemployed because he cannot get work and the
man who is unemployed because he does not want to work, requires a modicum of knowledge
and reflection which even at the present day is not always forthcoming.71
Research shows that the official perception that vagrants and beggars do not want to work
has echoes across different time periods, especially in England. Bier has challenged some of
the assumptions about vagrants in 16th century England being ‘work shy’ and ‘wilfully idle.’72
The 1881 Poor Law Conference in London deemed tramps ‘pedigree bred…a race which has the
very genius of not working in its bones and sinews.’73 Interestingly, of 19th century Egypt it has
been written that begging by the able-bodied poor was indicative of the laziness of the peasantry.
Here, the perception was that one of the factors that brought migrants to the cities was the ‘fact’
that a career of begging was much easier than the difficult work of agriculture in the countryside.
‘The justifications for arrests (in Egyptian cities) were…that able bodied but ‘lazy’ peasants were
engaging in begging.’74
Laws of Metamorphosis
19
As we shall see in this section, in the Indian case too—as in many other societies across the
world—the common ground between the vagrant and the beggar was the ostensible facts that
both committed the offence of not working, or were seen to be not working. Beggary, which is
officially related to vagrancy, has long been associated with wilful laziness, idleness and crime.
A combination of the above factors led to the forming of an image in the official mind by which
one attribute of an unemployed poor person, as it were, invokes other attributes.
Upon independence, India found that the nomadic tribes were a mixed lot: some were settled
and engaged in intermittent, casual/wage work; many were still nomadic and supplemented such
work with work as itinerant traders, small artisans and street performers; most were grievously
impoverished, and severely persecuted by the police, being still on the list of ‘Criminal Tribes’
prepared by the British lawmakers.75
It is, in fact, quite clear that the term ‘beggar’ was by now seen to be a subset of the ‘vagrant’,
in that homelessness as well as lack of means of subsistence were seen factors serious enough
to invoke the legislation to prevent beggary.76
The beginning of a law which dealt with the ‘vagrant’ part of the problem was clear in one of
the Constituent Assembly debates. In 1949, the Constituent Assembly had considered whether
there should be a separate amendment to control beggary, but then the amendment was withdrawn as B.R. Ambedkar had pointed out that the Concurrent List contained a provision to
address the problem of vagrancy, which included beggary.77 Raj Bahadur, the member of the
Constituent Assembly who had proposed the amendment considered beggary to be a result of
the ‘rot of lethargy’.
In fact, in most countries, they have legislation prohibiting beggary; but in our country this
evil continues as a stigma on our fair name and reputation…our climatic conditions also result
in lethargy and laziness in the habits of our people. This has also accounted for this abnormal
number of beggars in the land. Some people turn beggars only because they are too lazy to work.
They fill their stomach without earning their livelihood by honest work. They simply live on
alms and do not work. They are a burden on Society.78
That the Bombay Prevention of Begging Act, 1959 was written with the nomadic communities
in mind is evident from the definition of begging itself. Begging is defined as:
Soliciting or receiving alms, in a public place whether or not under any pretence such as singing,
dancing, fortune telling, performing or offering any article for sale…. Having no visible means of
subsistence and wandering about or remaining in any public place in such condition or manner, as
makes it likely that the person doing so exist soliciting or receiving alms.79 [Emphasis added]
20
Meena Radhakrishna
As is clear, such a definition would qualify the nomadic tribes almost to the last detail as beggars.
The Act also includes concerns about vagrancy through the inclusion of the clause about ‘having
no visible means of subsistence’ and ‘wandering about.’80 As is known, the nomadic communities
included among them singers, dancers, street performers, acrobats, fortune-tellers, and also
those who earned a living by selling medicinal herbs, iron implements, goods made of bamboo
or leaves like baskets, mats, brooms and so on. As the excerpt from the Act above shows, anyone
who performs any of these earlier legitimate activities, and then expects payment for entertaining
the public or by ‘offering any articles for sale’ is seen to be ‘soliciting or receiving alms’—meaning
begging—under the ‘pretence’ of earning a livelihood through these means.
The Bombay Prevention of Begging Act, 1959 has continued to serve as the model for antibeggary legislation in 15 states in free India.81 The clue to a very important missing link in our
understanding of the slow but inexorable construction of a gypsy or nomad into a criminal in
the Indian case is provided by a current statement on the official website of the Social Welfare
Department in Maharashtra under the subject Social Defence:
In Maharashtra State there are five pieces of social legislation the aim of three of which is to
protect children and to prevent juvenile adolescents and young adults from becoming habitual
criminals. They are the Bombay Children Act, 1948, the Bombay Borstal Schools Act, 1929
and the Bombay Probation of Offenders Act, 1938. The remaining two viz., Bombay Prevention
of Begging Act, 1959 and the Bombay Habitual Offenders Act, 1959, deal with prevention of crime
and treatment of offenders.82 [Emphasis added]
In other words, by the year 2000, the anti-begging Act is expressly stated not to prevent
begging, as the nomenclature in the Act suggests, but to prevent crime. This is not because of
any confusion in the administrative mind; by now begging and crime are seen as synonymous.
Moreover, rounding up beggars would prevent crime, as beggars were deemed to be criminals in
disguise. The two separate Acts mentioned above in a single breath—one for begging and another
for treatment of offenders—were put together to create the notion of a ‘beggar offender’ in the
eyes of the law.83
As the Karnataka Prohibition of Beggary (Amendment) Act, 2002 shows, its jurisdiction has
been expanded by repeated amendments. This was made possible by the increased migration of
these communities into new areas in search of work and their entrance into new territories in order
to find customers for their precarious services and goods. Today, a random study of the operation
of anti-beggary laws in Delhi shows that a large section of the communities regularly rounded
up and criminalised under the Act are the denotified and nomadic communities.84
The extent to which the nomadic people in India have actually become impoverished enough
to have genuinely degenerated to beggary for a livelihood has to be researched. Even from the perspective of lawmaking, further intensive research needs to be done to understand the precise judicial
Laws of Metamorphosis
21
processes by which nomadic communities who are still practicing their earlier occupations for a
livelihood have become the target of officials enforcing anti-beggary laws. One of these processes is
the changes in the law’s perception of poverty and criminalisation through legislation with regard
to poverty, in general, and nomadic tribes, in particular.
The Argument
A remarkably prescient paragraph on the London poor shows that members of an underclass were
already entering, by law, the next stage of metamorphosis. What is interesting for our purposes, is
that this metamorphosis was evident not only in the case of the London poor: their counterparts
in both colonial and independent India were slowly ‘evolving’ into criminals and offenders as well.
Mayhew’s writings more than 150 years ago were prophetic in terms of the overt connections
made between the utterly despised and degraded sections of London, on the one hand, and colonial
nomadic tribes, on the other:
The pickpockets—the beggars—the prostitutes—the street-sellers—the street-performers…. In
each of these classes—according as they partake more or less of the purely vagabond, doing nothing
whatsoever for their living, but moving from place to place preying upon the earnings of the more
industrious portions of the community, so will the attributes of the nomad tribes be more or less
marked in them.85 [Emphasis added]
History seems to have come full circle. The title of Mayhew’s London Labour and the London Poor,
with which this chapter began, provides the backdrop to some understanding of contemporary
legislation in countries like India. It is sobering to note that ‘labour’ and ‘poor’ are treated by Mayhew
as discrete categories. The acceptance of the ‘labouring poor’ as a category in this tell-tale title was
absent, although that is what the three volumes were actually about. In a widely prevalent view held
by the lawmakers, the ‘poor’, especially if they were engaged in certain occupations like those of
the nomadic tribes, were treated as actual or would-be criminals, rather than as labouring poor.
Postscript
As earlier research has established, the pseudo-scientific rhetoric of evolutionary theory was used
to distinguish the colonised peoples from the European colonisers.86 It is interesting that in his
three volumes, Mayhew repeatedly compared the London poor with the colonial savages who
were soon to be relegated to the lowest rung of the evolutionary ladder. Whatever might have
been the reasons for writing these volumes, Mayhew, through this repeated comparison, managed
22
Meena Radhakrishna
to emphasise both the lack of desirability and the lack of likelihood of the London poor evolving
into full citizens. (These were times of intense debate about universal suffrage.)
The Criminal Tribes Act, 1871 was instituted by the colonial administration and applied to
a large number of nomadic and other communities in India. It has been researched as a piece of
colonial legislation, although its clear connections to caste interests have also been explored.87 As
far as their dealings with the Indian subaltern sections are concerned, it is also obvious that the
Indian lawmakers have repeatedly taken whole leaves out of the colonial law books—the Habitual
Offenders Act, 1952 of independent India is only one of the pieces of legislation which mirrors the
prejudices of the colonial Criminal Tribes Act. However, as this chapter shows, there is a startling
similarity between attitudes of the ruling classes in England in the 1850s towards the gypsies and
the London underclass, on the one hand, and the views of independent India’s lawmakers towards
the nomadic communities from the 1950s onwards, on the other. In fact, the views of the Indian lawmakers and laws relating to nomadic communities hardened by the beginning of the 21st century.
It is instructive that both in England and India debates on how to deal with the ‘poor’—including
the gypsies and the nomads—took place at historical junctures when universal citizenship was
evidently still not fully acceptable to the legislators. Such commonalities among the members of
the ruling classes across eras and societies need to be carefully analysed in order to understand the
extent to which some of the issues are related as closely to class as to colonialism.
ACKNOWLEDGEMENT
I thank Nasir Tyabji for patiently reading through and commenting on multiple drafts of this paper.
NOTES & REFERENCES
1. Mayhew, Henry. 1851. London Labour and the London Poor (four volumes). London: Griffen, Bohn and Company.
Stationer’s Hall Court. Electronic Text Center, University of Virginia Library. Available online at http://etext.virginia.
edu/toc/modeng/public/MayLond.html, accessed on 15 November 2006. Co-editor and founder of the satirical
Punch, with a wide readership, Mayhew had written a series of influential articles on the London poor in the Morning
Chronicle, which were later published in four volumes.
2. Jensen, Gary F. 2005. ‘Criminology, Historical Development’, in Richard A. Wright (ed.), Encyclopedia of Criminology.
New York: Routledge.
3. Epstein Nord, Deborah. 1987. ‘The Social Explorer as Anthropologist: Victorian Travellers Among the Urban Poor’,
in William Sharpe and Leonard Wallock (ed.), Visions in the Modern City: Essays in History Art and Literature,
pp. 120–33. Baltimore: John Hopkins University Press, quoted in Ludlow, Christa. 1994. ‘The Reader Investigates:
Images of Crime in the Colonial City’, The Australian Journal of Media & Culture, 7(2).
Laws of Metamorphosis
23
4. Carlyle, Thomas in Richard D. Altick (ed.). 1965. Past and Present (1843), p. 274. New York: New York University
Press, quoted in Hansen, Adam. 2005. Exhibiting Vagrancy, 1851: Victorian London and the Vagabond Savage,
CFP: Literary London: Interdisciplinary Studies in the Representation of London (e-journal, 28 February 2005).
Available online at http://cfp.english.upenn.edu/archive/Cultural-Historical/0180.html, accessed on 16 September
2006. Human attributes like memories and hopes are denied to those who are nomadic.
5. Darwin, Charles. The Descent of Man (1871). London: Gibson Square Books, 2003, p. 133, quoted in Hansen
2005, op. cit.
6. Mayhew quoted in Weiner, Martin J. 1990. Reconstructing the Criminal: Culture, Law, and Policy in England,
1830–1914, p. 31. Cambridge: Cambridge University Press.
7. Hansen 2005, op. cit.
8. Philip, Kavita. 2002. ‘Race, Class and the Imperial Politics of Ethnography in India, Ireland and London, 1850–1910’,
Irish Studies Review, 10(3): 293.
9. Mayhew, Henry. 1861. London Labour and the London Poor, Volume 1, ‘The London Street Folk’, p. 341. London:
Griffin, Bohn and Company.
10. Mayhew quoted in Hansen 2005, op. cit.
11. Mayhew, Henry and John Binny. 1862. The Criminal Prisons of London and Scenes of Prison Life, p. 384. London:
Griffin, Bohn and Company, quoted in Weiner 1990, op. cit., p. 24.
12. Philip 2002, op. cit., p. 294.
13. Smith, Sheila M. 1980. The Other Nation: The Poor in English Novels of the 1840s and 1850s. Oxford: Oxford
University Press, quoted in Wiener 1990, op. cit., p. 31.
14. Quoted in Weiner 1990, op. cit., p. 34. It has been proposed that Henry Mayhew was a ‘decisive’ influence on
contemporaries like Charles Dickens. Available online at http://en.wikipedia.org/wiki/Henry_Mayhew, accessed
on 6 November 2006.
15. Hansen 2005, op. cit.
16. Vagabonds in 19th century Egypt were described as (i) those with no fixed domicile nor means of subsistence,
(ii) able-bodied beggars, (iii) gamblers or those telling fortunes. Ener, Mine. 1999. ‘Prohibitions on Begging
and Loitering in 19th Century Egypt’, Die Welt des Islams, November, Special issue on State, Law and Society in
Nineteenth-century Egypt. 39(3).
17. Philip 2002, op. cit., p. 294.
18. The rest of this section draws from Radhakrishna, Meena. 2006. ‘Of Apes and Ancestors: Evolutionary Science and
Colonial Ethnography’, Indian Historical Review, January, Special issue on Colonial Adivasi, pp. 8–10, 13–14.
19. Lubbock, John. 1872. Preshistoric Times. First published in 1865. London: Williams and Norgate.
20. Thurston, Edgar. 1907. Ethnographic Notes on Southern India. Madras: Superintendent Government Press.
21. Kelly, Alfred. 1981. The Descent of Darwin: The Popularization of Darwinism in Germany, 1860–1914. Chapel Hill:
The University of North Carolina Press.
22. Samuelson, James. 1890. India Past and Present, p. 95. London: Trubner and Co., quoted in Radhakrishna 2006,
op. cit., p. 9.
23. Through the 19th century, British expansionist desires extended from the plains to the hills, as need for land for
plantations pressed on the administration. The ‘hill tribes’ increasingly came to be seen as a political and administrative
problem as they resisted the encroachment on their land by the planters, or recruitment as plantation workers, or
interference by missionaries with their social institutions. There was ‘trouble’ with the Santals, starting in 1855, for
several years, and with the Nagas in 1878. An earlier experience of 1835 of tribals as formidable Dasyus was still
in the administrative memory: on moral grounds of suppressing the custom of human sacrifice practised by the
Kondhs, the British army, even after it burned down whole Kondh villages, had to remain deployed for a long period
to check further resistance. A regular pacification programme to deal with the tribal people had been launched by
the British, and this made them see a parallel between their own beleaguered situation and that faced by the Aryans
24
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
Meena Radhakrishna
centuries ago. However, it was hoped that the criminal Dasyus could successfully be turned into the Dasa mould,
either as workers or soldiers in British armies. The successful examples were the ‘exterminator’ Akas of Assam ‘the
eaters of a thousand hearths and the thieves who lurk in the cotton fields who ceased to be disturbing element in
India by recruitment into the army’. Hunter, W.W. 1886. The Indian Empire: Its People, History and Products, p. 59.
London: Trubner and Company.
Major, Andrew. 1999. ‘State and Criminal Tribes in Colonial Punjab: Surveillance, Control and Reclamation of
the ‘Dangerous Classes’, Modern Asian Studies, 33(3): 663.
Richardson, Captain David. 1808. ‘An Account of the Bazeegurs, A Sect Commonly Denominated Nuts’, Asiatick
Researches, 7: 465 quoted in Brown, Mark. 2001. ‘Race, Science and the Construction of Native Criminality in
Colonial India’, Theoretical Criminology, 5: 358.
Richardson in Brown 2001, op. cit., p. 359.
Ibid.
‘Timeline of Romani History’, The Patrin Web Journal, available online at http://www.geocities.com/~patrin/timeline.
htm. However, recent research claims that British medical tradition was not convinced of the fact that a criminal
was born to commit crime, and, in fact, lambasted both the ‘slapdash methodology’ and the content of this Italian
author’s ‘research’. Davie, Neil. 2006. Tracing the Criminal: The Rise of Scientific Criminology in Britain, 1860–1918,
p. 21. Oxford: Bardwell Press.
These included the ‘village watchmen, religious mendicants, carriers of Ganges water, bards and fortune tellers,
Brinjaries, trappers and snarerers (sic) of birds, game and so on, workers in bamboo, cane, mat, rope and reed work,
breeders of donkeys, snake charmers, tumblers and exhibitors of monkeys and bears’. Brown 2001, op. cit., p. 359.
There was renewed interest in the gypsy dialect, and the gypsy ‘lore’ in 19th century literature. ‘Proceedings’, available
online at http://www.oldbaileyonline.org/history/communities/gypsy-traveller.html#communitiesandhistories,
accessed on 4 December 2006. Generally, there is a lot of romance and adventure associated with Gypsy travels, and
they were celebrated in imagination, especially in English fiction and poetry. Mayall, David. 1988. Gypsy-Travellers
in Nineteenth-Century Society, p. 87. Cambridge: Cambridge University Press. It has been pointed out that the
‘gypsies’ exotic potential’ is frequently exploited by writers in general. Okley, Judith. 1983. The Traveller-Gypsies,
p. 7. Cambridge: Cambridge University Press.
Radhakrishna, Meena. 2001. ‘Introduction’ in Dishonoured by History: ‘Criminal Tribes’ and British Colonial Policy,
p. 11. New Delhi: Orient Longman.
‘Proceedings’, available online at http://www.oldbaileyonline.org/history/communities/gypsy-traveller.html#
communities and histories, accessed on 4 December 2006.
‘Migration Histories’, available online at http://www.movinghere.org.uk/galleries/histories/irish/settling/settling.
htm, accessed on 15 November 2006.
Mayhew 1851, op. cit.
‘According to figures cited by Mayhew in London Labour, in the winter of 1848–49 (years of famine in Ireland),
the Houseless Poor Society sheltered…12 individuals from Africa, 78 from America, 19 from the East Indies, 8068
from Ireland, 230 from Scotland, 25 from the West Indies’. Mayhew quoted in Hansen 2005, op. cit.
Jackson, J.W. 1855. ‘The Race Question in Ireland’, Anthropological Review, vii(xxiv): 58–60, quoted in Philip
2002, op. cit., 297.
Jackson, ‘The Race Question in Ireland’, quoted in Philip 2002, op. cit., p. 296.
During the late 19th century, the magazine became notorious for regularly publishing anti-Irish jokes. Available
online at http://en.wikipedia.org/wiki/Henry_Mayhew and http://en.wikipedia.org/wiki/Punch_% 28magazine
%29, accessed on 5 December 2006.
Philip 2002, op. cit.
Lebow, R. 1976. White Britain and Black Ireland: The Influence of Stereotypes on Colonial Policy, p. 74. Philadelphia:
Institute for the Study of Human Issues, quoted in Philip 2002, op. cit.
Laws of Metamorphosis
25
41. McIntyre, Charshee C.L. 1993. ‘The Irish Precedent: The Perfecting of the System and Enslaving the Alien’ (Chapter 2),
in Criminalizing a Race: Free Blacks During Slavery. New York: Kayode Publishers.
42. Radhakrishna 2001, op. cit., pp. 9–12.
43. ‘Report on Administration for 1862–63’, Para 49, cited in Major 1999, op. cit., p. 666.
44. Radhakrishna. 2001, op. cit., ‘Introduction’.
45. That is possibly because the livelihoods of so many nomadic groups had been destroyed by British colonial policies
to raise revenue that such groups had partially become vagrants, in the sense that the British understood the term,
that is, mainly people wandering about without a home or a fixed means of subsistence.
46. Radhakrishna. 2001, op. cit., ‘Introduction’, Chapter 2.
47. Available online at http://www.oldbaileyonline.org/history/communities/gypsy-traveller.html, accessed on
4 December 2006. By the 18th century, the normal punishment for vagrancy included whipping, a week’s imprisonment and removal to one’s place of settlement.
48. Lucassen, Leo, Wim Willems and Annemarie Cottaar. 1998. Gypsies and Other Itinerant Groups: A Socio-Historical
Approach, pp. 66–67. New York: Palgrave.
49. Bier, A.L. 1974. ‘Vagrants and the Social Order in Elizabethan England’, Past and Present, 64(August): 12.
50. Stedman-Jones, Gareth. 1971. Outcast London. Oxford, p. 88, quoted in Bier 1974, op. cit., p. 13.
51. These ‘labels’ included tinplate worker, wire worker, brazier or brasier, chapman, grinder, tinker, tinman, hawker,
pedlar, fiddler, vagrant, beggar, traveller, vagabond. Available online at http://www.oldbaileyonline.org/history/
communities/gypsy-traveller.html#communities and histories, accessed on 3 December 2006.
52. Major 1999, op. cit., p. 661.
53. Hansen 2005, op. cit.
54. Samuel, Raphael. 1973. ‘Comers and Goers’, in H.J. Dyos and Michael Wolff (eds), The Victorian City: Images and
Realities, 1, pp. 152–53. London: Routledge and Kegan Paul, quoted in Hansen 2005, op. cit.
55. Radhakrishna. 2001, op. cit., ‘Introduction’, p. 50. In fact, this is now a well-recognised fact by researchers on nomads,
in general. An author has noted the traditional trade routes of the Gaduliya lohars, a ‘criminal tribe’. Ruhela, Satya
Pal. 1984. The Children of Indian Nomads, p. 57. New Delhi: Sterling Publishers. Similarly, ‘it-rah’—trade routes—of
another nomadic community is mentioned in Barth, Frederik. 1961. Nomads of South Persia—the Basseri Tribe of
Khamesh Confederacy. Oslo: Oslo University Press.
56. Lucassen et al. 1998. op. cit., pp. 66–67.
57. Chevalier, Louis. 1973. Labouring Classes and Dangerous Classes in Paris during the First Half of the Nineteeth Century.
London: Routledge and Kegan Paul.
58. Lucassen et al. 1998. op. cit., pp. 66–67.
59. ‘Gypsies and Travellers: The Eighteenth-Century Gypsy Community’. Available online at http://www.oldbaileyonline.
org/history/communities/gypsy-traveller.html, accessed on 4 December 2006.
60. Hansen 2005, op. cit.
61. Royal Commission on the Conditions of the Poorer Classes in Ireland, Appendix G, ‘The State of the Irish Poor in
Great Britain’, Parliamentary Papers (1836), XXXIV p. iii., quoted in ‘Proceedings’, available online at http://www.
oldbaileyonline.org/history/communities/gypsy-traveller.html#communitiesandhistories, accessed on 4 December
2006.
62. This Act in England has not been repealed, and in fact it continues to operate on the same premises to this day.
63. Denzil Ibbetson quoted in Major 1999, op. cit., p. 662.
64. Tucker, F. Booth. Criminocurology or the Indian Crim and What to do with Him, A Report of the Work of the
Salvation Army Among the Criminal Tribes, Habituals and Released Prisoners in India. London, n.d. p. 43.
65. The work of the Salvation Army in India, as also their ideology of criminocurology, has been explored in some
detail in Radhakrishna. 2001, op. cit., ‘Introduction’, pp. 15–18 and Chapter 3.
66. Radhakrishna. 2001, op. cit., ‘Introduction’, Chapters 3, 4 and 5.
26
Meena Radhakrishna
67. Under the Constitution of India, Seventh Schedule (Article 246), Concurrent List, item no. 15. Also see debate on
Wednesday, 20 August 1947, Constituent Assembly of India (Volume 5) http://parliamentofindia.nic.in/ls/debates/
vol5p3b.htm.
68. Subsequent debates suggest that to control this multi-dimensional category of people moving across states, a special
law was needed.
69. Extracts from the Report of the Criminal Tribes Enquiry Committee, United Provinces, 1947, quoted in Report
of the Criminal Tribes Act Enquiry Committee (1949–50), New Delhi: Government of India Press, n.d.
pp. 142–43.
70. It was recommended by the Committee that ‘the decision whether a person comes under the definitions of
‘Habitual Offender’ or ‘Vagrant’ should be made by Court on recommendation of the prosecuting authority.’
71. Tawney, R.H. 1967. The Agrarian Problem in the Sixteenth Century (new edition), p. 269, quoted in Bier, op. cit.,
p. 64.
72. Bier 1974, op. cit., p. 4.
73. Vorspan, Rachel. 1977. ‘Vagrancy and the New Poor Law in Late-Victorian and Edwardian England’, English
Historical Review, XCII: 72, quoted in Hansen 2005, op. cit.
74. Ener 1999, op. cit.
75. Radhakrishna 2001, op. cit., ‘Introduction’, Chapters 1 and 2.
76. ‘When the law defines begging (Bombay Prevention of Begging Act, 1959), it also takes into its gambit…soliciting
or receiving alms in a public place and includes any one having no visible means of subsistence and, wandering about
or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by
soliciting or receiving alms. This broad definition allows the police to arrest anyone who looks poor and unfairly
targets those who are houseless and live in public places such as pavements or parks’ [Emphasis added]. Raj, Pushkar,
General Secretary, People’s Union for Civil Liberties (PUCL), Delhi, ‘Criminalising poverty: Houseless and AntiBeggary Law in Delhi’, PUCL Bulletin, January 2005, Delhi.
77. Raj Bahadur debating with B.R. Ambedkar, Constituent Assembly of India (Volume 9), Thursday, 1 September
1949, available online at http://parliamentofindia.nic.in/ls/debates/vol9p23b.htm, accessed on 12 December, 2006.
Raj Bahadur, however, withdrew the amendment for a separate consideration of beggary when it was suggested
that he put it to vote.
78. Ibid.
79. The Bombay Prevention of Begging Act, 1959.
80. The Karnataka Prohibition of Beggary Act, 1975 (as amended by Acts 7 of 1982, 12 of 1988, and 26 of 2003).
Available online at http://dpal.kar.nic.in/pdf_files%5CPROHIBITION%20OF%20BEGGARY-B.pdf, accessed
on 10 December 2006.
81. In fact, this Act has been in force in Delhi since 1960, without adaptation to the special ‘needs’ of Delhi. There is
a plethora of laws which have been instituted, and also subsequently amended. The Jammu & Kashmir Prevention
of Begging Act, 1960; the Andhra Pradesh Prevention of Begging Act, 1964; the Haryana Prevention of Begging
Act, 1971; the Punjab Prevention of Begging Act, 1971; the Goa, Daman & Diu Prevention of Begging Act, 1972;
the Cochin Vagrancy Act, 1974; the Uttar Pradesh Prohibition of Begging Act, 1975; and, in 2003, the Karnataka
Prevention of Beggary Act, 1975, was amended. Brasell-Jones, Trudy. ‘Beggars Can’t be Choosers: The injustice of
anti-beggary laws in India’. Unpublished paper, courtesy Indu Prakash Singh, Ashray Adhikar Abhiyan.
82. District Gazetteers, Nasik District: Law, Order and Justice—Social Welfare Department, (Correctional Administration Wing and Non-Correctional Wing), Executive Editor and Secretary, Gazetteers Department, Government
of Maharashtra, 2000. Available online at www.maharashtra.gov.in/english/gazetteer/nasik/015%20Law/005%
20Social%20WelfareDepartment.htm, accessed on 10 December 2006.
83. A study of the Bombay Prevention of Begging Act shows that from the time a beggar is apprehended, the terminology
treats the beggar as an offender, even before it is proven that the person was indeed begging. Once it is ‘proven’ that
Laws of Metamorphosis
84.
85.
86.
87.
27
the ‘accused’ is guilty, the Act itself clearly defines a system of ‘penalty for begging after detention as beggar’. This
includes detention in a certified institution up to a period of three years when a person is convicted for the first
time; this detention can be converted into imprisonment for up to 10 years for a second conviction.
What officially and progressively qualify a beggar to become a ‘beggar offender’ are clauses which permit a beggar
in a certified institution to subject himself to fingerprinting, a refusal to do which will lead to an extension of the
detention or imprisonment period. Moreover, the Court may legally ‘order detention of persons wholly dependent
on beggar’.
Inserted in the latest amended Karnataka Prohibition of Beggary Act, 1975, modelled almost verbatim on
the Bombay Act, and amended as recently as 2002, are some additions: Refusal of a beggar to go to an institution
or to a magistrate is punishable with imprisonment or fine or both; every person detained in any of the institutions shall be subject to such rules of discipline as may be prescribed. The ‘explanation’ given is: ‘Discipline’
includes the enforcement of manual labour and hard labour, which brings to mind the logic behind Booth Tucker’s
‘criminocurology’.
Study conducted by this researcher under the aegis of the National Commission on Denotified, Nomadic and
Semi-Nomadic Tribes, Ministry of Social Justice and Empowerment, Government of India, December, 2006. The
Bombay Prevention of Begging Act, 1959 was extended to the Union Territory of Delhi vide Government of India,
Ministry of Home Affairs, 2 June 1960.
Mayhew, quoted in Weiner 1990, op. cit., p. 31.
For a detailed analysis of this point, see Radhakrishna. 2006, op. cit.
Radhakrishna. 2001, op. cit., ‘Introduction’, pp. 45–49.
2
Victims and Villains: The Construction of
Female Criminality in Colonial Calcutta
Sumanta Banerjee
INTRODUCTION
The concept of crime went through a change in 18th–19th century Calcutta under British rule.
According to the norms of morality that were prevalent in contemporary England, certain precolonial social practices and customs (for example, prostitution, street performance of folk culture
and so on) were designated as crime by the colonial administrators. The drive by a colonial power
towards the rapid urbanisation of a pre-industrial society also led to socio-economic tensions that
gave birth to new types of crime which were driven by both poverty (for example, street crimes such
as pick-pocketing and burglary of shops and banks) as well as by rising ambition among certain
sections of the urban middle class (for example, white-collar crimes such as embezzlement, forgery
and so on).
Within this new framework of criminality, women came to occupy a major domain. The colonial
authorities, under the influence of the then contemporary theories of criminology in their homeland,
pigeonholed certain acts of lawbreaking as ‘female crimes’—a special category of crime supposedly
peculiar to women. But this was a travesty of the truth. There were crimes shared by both men
and women—whether theft or murder—that showed little difference in the mode of operation.
Only detection of fingerprints, hair and so on, which came to be a part of forensic science much
later in the 19th century, could prove the identity and gender of the perpetrators.
There were, of course, certain types of acts that were labelled as crimes by the colonial administration for which women alone could be held responsible. But the motives that led to such acts
were a good index of the kind of pressures to which women, especially the deserted and the widowed,
were subjected to—pressures such as prostitution, foeticide or infanticide. In the police records of
Calcutta, prostitutes constituted the bulk of female criminals. But there were also women, not
Victims and Villains
29
necessarily prostitutes, from other classes who drifted into the Calcutta underworld. They were
intelligent, ambitious women, determined to be successful, who deliberately broke the laws to
achieve personal goals. There were also housewives faithful to their husbands and daughters
loyal to their fathers who went to the extent of collaborating with them in any deed, even if it was
criminal in nature. At the turn of the 20th century, the police apprehended a number of women
from some Bengali households who were accomplices along with their fathers or husbands in the
manufacturing and uttering (that is, the circulation) of counterfeit coins. Named Wasifannisa Bibi,
daughter of Majahar Mian, Abedan Bibi, an associate, and Mohibannisa Bibi, they were mainly
cultivators, blacksmiths and day-labourers. This gives us some idea of the economic composition
of those female criminals who supplemented their household income by indulging in activities
such as counterfeiting.1
The accounts of women criminals in colonial Calcutta that are available in police records and
the writings of contemporary observers are tinged with a misogynous bias that proceeded on a
number of assumptions. First, there were the biological positivists who assumed that the incidence
of crime among women was rooted in their inferior physical and mental status, which drove them
to treacherous and unscrupulous acts. From this arose the next assumption—that women were
more cunning than men and instigated the latter to commit crimes. This stereotype of the sexual
enchantress long remained stuck in the minds of lawmakers and judges (both comprising men in
those days) in colonial Calcutta.
Another view, which also stemmed from the same gender-specific assumption, held that female
lawbreakers were delinquents of a special type—in essence, non-women. Identifying criminality as
a masculine trait, this view stressed that by committing crimes, women delinquents offended not
only society but also their basic nature, which was assumed to be passive, peaceful and maternal.
Such constructs sprung from the male disappointment with the non-fulfilment of the duties attributed to women, who were, by breaking the law, thought to have deviated from their biologicallydetermined socio-sexual roles.
Contemporary Bengali chapbooks as well as memoirs left by police officers2 abound with descriptions of such women, who are invariably painted as dark-skinned, huge and muscular, always
chewing paan and smoking bidis, spewing abuses and behaving like boorish male hoodlums. Yet,
if one reads between the lines of these highly misogynistic accounts, one can occasionally discover
the complex forms of social oppression and economic exploitation that led these women to break
the law. Lawbreaking was often the only rational option available to women who suffered from
discriminatory gender relations and an exploitative class system in Calcutta.
Not that this should make us rush to the conclusion that all women criminals belonged to the
lower socio-economic groups. Some were cultivated in their physical appearance and sophisticated in their behaviour, and willingly, not out of any compulsion, engaged in crime in their determination to be independent and successful—perhaps to overcome the social disabilities imposed
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Sumanta Banerjee
upon them by a patriarchal society, or individual ambition for power and high income—or perhaps
for sheer fun. One such woman was named Sushila, the mistress of a well-known barrister of
Calcutta, who drifted into the underworld. Her adventures will be recounted later.
The stories of these diverse types of women criminals in 19th century Calcutta demolish some
well-cultivated myths about ‘female criminality’ in both Victorian England and contemporary
Calcutta. Theories of supposedly natural biological characteristics and destinies that were attributed to women collapsed in the face of the circumstantially interchangeable roles that men and
women assumed in the Calcutta underworld. There were men and women who equally shared the
traits of murderers or frauds. We come across a hardened male housebreaker called Maniruddin,
whose love for his mistress drove him to break out of jail (he was finally caught). We meet a prostitute named Trailokya, who could be as cold-blooded as any male murderer while killing innocent
victims, not out of sexually-motivated jealousy or of revenge but because she needed the money.
These hardboiled female members of the Calcutta underworld were not inspired by any ‘feminist’
theories of gender preference in their choice of targets: they did not hesitate to kill women—even
intimate acquaintances of their own class—for their own ends.
There were also women who used various devices which helped them survive in the difficult
urban environment—and which brought them under police surveillance. If married to professional criminals, they often became a part of their husbands’ families in the collective pursuit of
stealing, burglary, and storing and helping in the disposal of stolen goods. In the smuggling of
opium, for instance, women were very active accomplices. According to N.L. Bhattacharya, a latter
day observer, ‘When smuggling is done by women, opium is chiefly carried in their borkhas—a
sort of loose voluminous garb…. Ample and capacious pockets are stitched inside these borkhas
and it is in these pockets that opium is stuffed…’3
But in the underworld of colonial Calcutta, women who began as accomplices (either as
underlings of male criminals or as members of criminal families) soon graduated to the position of
independent actors where they could assert their authority. Once they got their bearings through
their apprenticeship in various types of criminal operations, some of them broke away from male
domination and charted their own ways. The city offered them a variety of opportunities: as owners
of taverns and hotels, as landladies of lodging houses and youth hostels (known, in Bengali parlance,
as ‘mess’) and as madams of brothels. All these occupations were looked down upon as suspicious
activities by the police authorities of Calcutta, who bracketed them with criminal acts.
From the middle till the end of the 19th century, hotels and lodging houses had sprung up in
large parts of the city that were inhabited by the indigenous population (described by the colonial
rulers as Black Town, as distinct from White Town, which was the exclusive reserve of European
residents). Such establishments were a new urban phenomenon in colonial Calcutta. Migrants were
pouring in from all parts of the country in search of work and speculative ventures.4 Since they
Victims and Villains
31
needed to stay in the city not for a day or a night’s rest but for longer periods, inns and lodging
houses sprung up to meet their needs.
Significantly, women had been associated with the hotel business in Calcutta right from the
start. The earliest among such entrepreneurs we hear about was one Demingo Ash (probably
European or Eurasian), who obtained a license from the authorities to run a shop selling arrack
(a strong indigenous liquor) and a hotel combined around 1710. In the 19th century, there were
Muslim women owners of coffee shop-cum-hotels in the Mechhuabazar area of central Calcutta
who were notorious for enticing addicts by peddling drugs mixed in coffee or paan. A police
detective gives us a vivid description of one such hotel:
As you enter the coffee house, you see two women with painted faces sitting on either side of
the door selling paans. They are flanked by two big mirrors on which you see the reflection of a
bewitching figure of a Muslim woman decked in ornaments (who is the presiding deity inside
the coffee house)…. You won’t find anywhere anything to match the paan that you get here.
Initially, you don’t have to pay for it. You get it on credit. But over a certain period of time, you
have to repay the amount along with interest and commission.… As I take a seat in a corner,
the woman paan seller comes and gives me a paan. I take it, but surreptitiously hand it over to
my companion Abdul, and bring out instead the paan that I have been carrying with me, and
I begin to chew it.…5
Among women deemed as criminals by the colonial rulers, it was the prostitute who was doubly
damned. The economic and social changes brought about by the colonial order in Bengal altered
the status of the prostitute in Calcutta. Prostitution in pre-colonial Bengal was tolerated as a
social transgression rather than branded as a legal crime. Prostitutes were seldom pursued by the
state and put behind bars. But in the course of the clash between the pre-colonial value systems
and the British administration’s formal attempts to introduce institutionalised mechanisms of
control, prostitution in Calcutta was redefined: there was a shift from its earlier socio-religious
interpretation as a ‘sin’ to its colonial socio-legal codification as a ‘crime’. Special laws, such as the
Cantonment Act of 1864 (which allowed the recruitment and sanitisation of a special category
of prostitutes who were embedded in the cantonments to serve the needs of the British soldiers),
and the Contagious Diseases Act (CDA) of 1868 (which subjected all other prostitutes to regular
medical examination and police surveillance), were enacted to put the entire profession under strict
state control. Prostitutes were, thus, categorised as a class of suspects who had to be kept under
constant supervision, and punished whenever they broke the rules laid down by the new laws.
Prostitutes became the symbolic embodiment of urban vice.
It was not the new penal laws alone that rendered prostitution into a crime: the prostitutes
themselves were of a new breed produced by the colonial economic system, and were destined to
32
Sumanta Banerjee
gravitate towards the underworld. They were born of a violent era; they were different from the
well-bred courtesans of feudal courts, or the professional prostitutes who used to occupy a corner in
a village or lived in kothas in the cities, catering to the sexual needs of the local profligates as well as
contributing to the cultural needs of society with their musical and dancing talents. From the
18th century onwards, with the collapse of the Mughal empire, the depredations by the Maratha
freebooters in the Bengal countryside and the disruption of the old agrarian economy following
the introduction of a new revenue system by the newly-arrived British rulers, there followed a
period of utter disorder in social relations, civil strife and a succession of severe famines.
As in all similar situations that mark a violent historical transition, it was the women who were
the worst affected in Bengal. Thousands were driven out from their homes, either abducted or
sold as slaves. Victims of rape and trafficking were forced into the new red light areas that were
coming up in Calcutta, which was the unrivalled metropolitan centre of 18th and 19th century
prostitution. They were a new generation of prostitutes who were initiated into the profession by
the violence that shaped the metropolis and which uprooted the area’s original villagers to make
way for the city. The prostitutes were brutalised by both the administration and the environment
in which they operated.
Since they could not alter this dominating structure of violence which bred and nurtured their
profession, the prostitutes developed their own everyday forms of resistance, borrowing from this
structure itself. Cheating the customers, drugging them with liquor and other intoxicants and
stealing their belongings—among other such trickery—were the modus operandi adopted by many
prostitutes to get even with the violent men who sought to exploit them. Many among them, at the
end of their journey, turned into hardened, impenitent women imbued with a brooding sense of
wrong, an inveterate suspicion of men, in general, and a reckless urge to make money at whatever
cost. Ironically, they ended up in their old age as agents of the same class of traffickers in women
who had initially smuggled them into the red light areas. They succeeded to the role of the ageing
madams of Sonagaji, (the old red light area of north Calcutta), who had bought them from the
traffickers when they were young.
A FEW CASE STUDIES
An examination of some of the cases of women who were hauled up as criminals by the police and
often sentenced by the judiciary reveals the socio-psychological make-up of these victims. In this
connection, it is worth mentioning an interesting instance of a gifted woman’s devotion to her
husband Ibrahim, a professional burglar, which made her, in the eyes of the penal system, an accomplice. Ibrahim was a notorious gangster and burglar in late 19th century Calcutta. Suspecting him
Victims and Villains
33
of murdering a rich citizen and stealing an expensive watch from him, the police raided his house
in the infamous rookery of Mechhuabazar in Black Town. The search did not lead to the recovery
of any stolen good whatsoever, not to speak of the watch. The police inspector then entered the
kitchen where Ibrahim’s wife, Umda, was cooking rice. He and his men found nothing there
either. A body search of both Ibrahim and Umda yielded nothing. As the frustrated police inspector,
having failed to pin the blame on Ibrahim, sat gnashing his teeth in despair, Umda silently went
on stirring the rice in the cooking pot. The sight of her cool demeanour further infuriated the
officer, who decided to take it out on her. He asked his men to lift the pot of rice and throw it
away in the drain. To his surprise, the police inspector discovered the stolen watch he was looking for glistening from the heap of half-cooked rice that had been poured into the shallow gutter.
Umda had obviously dropped the stolen watch into the rice in the cooking pot when the police
entered the house, expecting no one to think of searching a pot on the oven. It was sheer accident—
the police inspector’s angry reaction—that led to the discovery of the watch. At the end of the trial,
Ibrahim was sentenced to life for transportation, and Umda was given a two-year prison term on
the charge of hiding stolen goods.6
Like in many business ventures, in underworld operations, too, family loyalty often overruled
individual considerations of risks or ethical values. Wives protected their husbands, mothers
defended their sons. This gave rise to sayings and proverbs in Bengali, that disparaged the families of
criminals, such as ‘Chorer mayer kurkuti, andhakarer ghurghuti’ (The crookedness of a thief ’s mother
is as deep as darkness). Among many such proverbs, one stands out as a poignant expression of the
emotional conflict in the heart of a thief ’s mother: ‘Chorer mayer kanna, ugarbaro noy, phukarbaro
noy’ (A thief ’s mother can neither disgorge her sorrow in tears nor cry it aloud in wails).7
But in the 19th century Calcutta underworld, women were also breaking out from traditional
family bonds and charting out their lives in different directions. Prostitutes took the lead: some
even left their brothels to seek fortunes in the higher echelons of society. As the 19th century drew
to a close, a new generation of spirited women appeared in the underbelly of Calcutta’s Black
Town. Daughters of prostitutes, or women born in squalid environs associated with similarly discredited professions, they got educated and acquired the values and manners of the city’s cultural
elite. Some joined the Bengali stage, which, in the latter half of the 19th century, bustled with new
ideas and experiments and welcomed them into its fold. There were stars like Binodini, Golap (who
became Sukumari Dutta after marrying a Bengali upper class bhadralok), Teenkori, Susheelabala,
Norisundari and many others who, with their acting and singing talents, swept the audience off
their feet in the Calcutta theatre halls.8
While these women were establishing themselves in the world of music and theatre, some of
their contemporaries were exploring other territories in which to use their talents. They were
actresses, in their own way. One such woman, known in police records as Sushila of Mehdibagan, was
fondly remembered by a police detective, Priyanath Mukhopadhyay, who spent months tracking
34
Sumanta Banerjee
her down. We learn from his memoirs that she was the daughter of a prostitute, learnt English,
moved out from the red light area and married a bhadralok under a ‘newly enacted marriage legislation’ (most probably the Brahmo Marriage Act of 1872) that required registration, thus legitimising her marital status in society. She soon left her husband and took up with a barrister for some
time. After that brief affair, she moved to a swanky house in Mehdibagan (today’s Wellesley Street)
in what was known as the Kalingabazar area of the city, which was inhabited in those days mainly
by Europeans and Eurasians and a few rich Bengalis. She soon got herself into disrepute, becoming
embroiled in a case in which she was accused of swindling. But she managed to get acquitted—and
then disappeared from Mehdibagan.
Sushila’s name resurfaced in the Calcutta police records after several years, following a complaint made by the owner of a jewellery shop in Burrabazar. She had come to his shop and asked
for a pair of the most expensive diamond bangles and a string of pearls. After choosing what she
wanted, she also picked up two diamond rings and a ruby, and settled to pay Rs 12,000 for the
entire lot. Instead of paying cash down, however, she brought out a silver casket from which
she produced a card. One look at the card was enough to overwhelm the jeweller and dispel whatever suspicions he might have had about her credentials.
The jeweller said in his statement:
From the name printed on the card, I discovered that she was the wife of a leading barrister
of the Calcutta High Court whom I knew. Why 12,000 rupees? If this barrister wanted to buy
jewellery worth 20,000 rupees on credit, I would have readily agreed to the deal.
The woman then told him that she was ready to buy the ornaments and pay him cash, but she
needed to show them to her husband before the purchase. She requested the shop owner to allow
one of his trusted employees to accompany her with the ornaments to her house, where once
her husband approved of them the final payment would be made. The owner was prevailed upon
by her not to take the pain of hiring another carriage to carry his employee, who, she said, could
accompany her in the same brougham by which she had come.
On the way, Sushila managed to push out the employee from the brougham with the help of
some associates who were hiding nearby and escaped with the jewellery. Following the jeweller’s
complaint, and after comparing the woman’s description given by him with their earlier reports,
the police first visited Sushila’s old residence at Mehdibagan, where they were told that she had
moved to Chandannagar. A French-governed enclave near Calcutta, Chandannagar was out of
bounds to the British Indian policemen, who could be fastened to the stocks if they were found
entering there without permission. Priyanath Mukhopadhyay, however, plucked up enough
courage to go there in mufti, and traced the house where Sushila lived. Although he could not find
Sushila there, he learnt from her servant that she had gone on some business to north India and
Victims and Villains
35
was expected back in a day or two. He also found out that Sushila was known in the locality as
a Bengali ‘Memsahib’, one who followed the lifestyle of a rich European woman and frequently
went out on trips of a fortnight or so.
Mukhopadhyay hit upon a plan. He knew that although Chandannagar was a French enclave,
its railway station (known also as Chandannagar) fell under the British administration’s jurisdiction. He decided to lie in wait at the station for Sushila, who, he was certain, would take a train
to reach Chandannagar. He also took along with him an employee of the Burrabazar jewellery
shop who had seen the woman when she visited the shop to buy the ornaments. Sure enough, a
couple of days later, a train arrived from Agra—and out stepped the Bengali ‘Memsahib’. She was
immediately identified by the Burrabazar shop employee as the woman who had taken away the
jewellery. The police detective arrested her in the premises of the British-owned railway station
before she could step into the safe territory of the French enclave. A search of her portmanteau
revealed an ornament which was identified by the Burrabazar shop employee as a part of the
jewellery that she had ‘bought’.
Sushila’s confession is a revealing account of the rise and fall of a woman from the lower depths
of the metropolis trying to climb up the treacherous stairs of upward mobility in Calcutta. She
educated herself in the tastes and manners of the upper class gentry, married into their class, and
left her husband to occupy a much higher status by becoming a barrister’s mistress. This helped her
gain access to the intricate workings of the prevailing legal system and to the loopholes available
there for escape from punishment. Among the barrister’s clients were characters from the underworld whom he defended in legal cases. That was how Sushila met them, and became involved with
them after she had fallen into bad days following her separation from the barrister. They formed
a well-knit gang, with the driver of the expensive brougham transporting them; musclemen lying
in wait to intervene when necessary, with Sushila carrying out the main operation—posing as an
upper class lady and stealing the goods.
The Burrabazar operation went slightly awry because of two imponderables, beginning with
the assault on the employee of the jewellery shop who accompanied Sushila: once inside the
brougham, Sushila tried to turn on her charm and entice him to part with the bag of jewellery that
he was carrying; when her efforts failed, she decided to hand him over to the other gang members—
the musclemen who were waiting at an isolated spot. She asked him to get down there, where these
men hit him on the head, took away the bag and deposited his body in the Maidan. But although
seriously wounded, the man did not die, and after recovering consciousness in hospital made a
statement that led the police to Sushila. Even then, Sushila could have escaped but for a small miscalculation: knowing well that she could not sell the stolen jewellery in Calcutta, she went to Agra
to dispose of them. She sold the entire lot, barring one piece which she fancied for herself. It was
this that gave her away when her portmanteau was searched at the Chandannagar station, and it
was identified as one of the stolen pieces.9
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Sumanta Banerjee
EUROPEAN AND EURASIAN VAGRANTS AND BEGGARS
There was another class of women in Calcutta who set up boarding establishments with the
ostensible purpose of bringing up homeless girls and waifs, or pretending to be distressed mothers
with many daughters. They were mainly Europeans and Eurasians from the lower classes, who, in
reality, ran these homes as dens where they trained these girls, picked up from the streets, to go
out and beg or steal. Thomas McGuire, a late-19th century observer describes one such woman
who used to start the day by preparing a rude map of selected districts in the city, and then allotting
them to the groups among her recruits for their operations.
Certain hours of the day were reserved for dwelling houses, others for offices to be dealt with;
certain streets were to be avoided at a particular time of the day; houses which had already been
approached or robbed before were kept out of the itinerary. Giving her parting instructions to
one of her recruits before she left on her assignment at ‘half past two o’clock from the vicinity of
Toltollah [Taltala, the area in the south-eastern part of the city that was inhabited by Eurasians]’,
this lady reminded the young girl, ‘Matilda Jane, dear! Try the offices, my dear, the gentlemen will
all have had their tiffins and their beer or wine, and will be in good humour’.10
Some of these European/Eurasian women operated on the streets of Calcutta. One would pretend
to be a bereaved mother seeking money to bury her just-deceased (?) child. Before descending
on the streets, she would first visit undertakers, get the names of children who had recently died,
procure from the undertakers notes certifying the cost of the child’s interment, and then approach
some city luminary to issue an application on her behalf seeking public donation to help her bury
her child. McGuire describes her mode of operation thus:
From so many undertakers she can, without difficulty, procure so many estimates of the cost of
interring so many babies (all alas! hypothetical) and so many tearful, heart-rending, distressing
applications with the necessary annexes are put into circulation at once, duplicate, triplicate,
quadruplicate, if need be….
She could rely on public charity, moving from one part to another in the Eurasian quarter of
Kalingabazar and even upwards in White Town bordering it, to play upon the emotions of the
rich ‘memsahibs’ who could be persuaded to spare a little for their unfortunate sisters. There was
yet other women in this community who would pretend to be ‘ladies in reduced circumstances’.
They pursued their calling in hired conveyances, approaching the houses of the rich among the
city’s European families. Wrote McGuire:
Armed with a supplication, highly coloured and pathetic…she has no end of means of contriving to send it up to the lady or gentleman of the house she has favoured with notice in
Victims and Villains
37
her round of calls, and in this way earns a comfortable income, not to speak of defraying her
conveyance hire for the day…
When approached by the author one day with the offer to find her a place in the Alms House of
the Calcutta Charitable Society, she straightaway rejected it: ‘No! I don’t think it would pay me!’
Explaining her logic, she said:
I pay two-eight (two annas and eight paise) a day for a gharee (hackney carriage). If the day is
fine, I can devote the hours to offices and dwelling houses—let’s see now—um–yes—about a
score I think.… Well sir, it would be a poor day indeed if I couldn’t net…from fifteen to twenty
rupees! and that…is a good deal better than going to the Alms House!11
The existence of these European and Eurasian beggars and professional cheats in Calcutta was
a source of embarrassment for the colonial administrators and the English missionaries. Bent on
proving the superiority of the ‘civilisational’ norms of the West over the ‘degenerate’ habits of the
heathen Indians, they found to their chagrin that their claims were being mocked at every step
by these people of their own race. European prostitution, in particular, which thrived unabated
in Calcutta all through the 19th century, hit hard at the structure of moral self-righteousness that
the British administration tried hard to set up as a part of its socio-cultural domination over its
colonised subjects. The sense of shame and revulsion felt by the English administrators at the
persistence of European prostitution in certain localities of Calcutta was expressed in distressing
terms by an English official about Kalingabazar, in the central-eastern part of the city, at the end
of the 19th century. Describing it as the ‘headquarters of European immorality’, he painted a
lurid picture:
It was a stagnant pool of repulsive vice, far more disgraceful in its flaunting character than
the Indian Vice Areas…. The number of young girls and even children concerned went into
hundreds, and that traffic was carried on every night within sound of the chimes of Christian
churches…12
PROSTITUTES TURNED INTO CRIMINALS
In the colonial set-up of 19th century Calcutta, prostitutes and their workplaces were drawn into
the vast folds of the violent criminal underworld. They were compelled to join the network of
violent transactions that marked the functioning of both the colonial administration and the
newly organised underworld that was the illegitimate offspring of the same colonial order through
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Sumanta Banerjee
its patriarchal penetration, and the resultant disruption, of indigenous Bengali society. The need
for defence from unruly customers led to their dependence on musclemen (protectors), usually
local gangsters and professional criminals, who would extract their pound of flesh by using the
brothels to dump stolen booty, or as hideouts to escape the police. The surroundings in which
the prostitutes functioned in the city pushed them to join the wide network of crime. Straddling
the two spheres of violence—one dominated by the colonial administrators, and the other by the
indigenous underworld—the prostitutes of 19th century Calcutta were both victims and agents
of violence.
In pre-colonial Bengal, within the patriarchal socio-religious structure, the prostitute was branded
as a ‘sinner’ (the Bengali term used for her was ‘patita’, meaning someone who had fallen from a
morally respectable—or acceptable—footing in society). She was, however, rarely hauled up as a
criminal. Like other outcasts (for example, scavengers, night-soil removers, doms who were needed
to burn the dead bodies of Hindus), the prostitute was grudgingly accepted as a necessary evil who
satisfied the needs of men. In fact, she was even allotted a slot in the religious rituals of Bengali
rural society. A rule was laid down that the making of the image of the goddess Durga (widely
worshipped all over Bengal during the autumn season) could not be perfect unless it consisted
of at least a handful of clay collected from the earthen floor of a prostitute’s doorstep. The logic
behind this was the belief that the earth on the threshold leading into a prostitute’s home was the
purest, since it collected all the accumulated virtues which were shed and left behind there by every
man who lost the said virtues once he entered the prostitute’s room. By turning the prostitute into
an appendage to religious rites, an innovative rural society made a religious virtue of the social
necessity of prostitutes.
All this changed in 19th century Calcutta. Prostitutes were found to be a source of the venereal
diseases that crippled and killed hundreds of English soldiers in India who visited the brothels.
The origins of these diseases in Bengal are shrouded in mystery. Some old chroniclers blame it on
Portuguese sailors who had come to the Bengal coastal areas in the past and infected the native
women (thus giving rise to the term ‘phiringee rog’—Western disease—used to describe venereal
diseases in those days). Whatever might have been their source, the diseases got implacably linked
to the profession of prostitution in colonial Bengal. The British administration found that the
diseases were spreading at an alarming rate among its soldiers. According to an official estimate
made in the 1860s, at least ‘one-third of the British Army passed through the hospitals in the course of
a year, suffering from [venereal] diseases…’. The report observed that at many stations, the proportion amounted to 50, 60 or even 70 per cent of the total force, and added ominously that
‘…a part of the invaliding which occurred [among the British troops] every year owed its origin
to these diseases which also indirectly aggravated the mortality from other causes…’.13
Yet, prostitutes were seen as necessary for the upkeep of the British troops posted in India, most
of whom had been uprooted from their homes in Britain, were young and unmarried, and took
Victims and Villains
39
recourse to the only outlet available to them: the public brothels that had sprouted in cities like
Calcutta. The colonial authorities, therefore, felt the need to enact special legal provisions that
would allow their troops to indulge in such proclivities as well as protect their health. Bent on
further imperial expansion, the British administration could not afford to see half of its troops
being ‘invalidated’ by venereal diseases and unable to join the military adventures that it was contemplating beyond the borders of the Indian part of its empire. The source of their ‘invalidation’
had, therefore, to be cleansed first to keep them in sanitised shape to feed the appetite of the British
soldiers. The prostitutes were put under strict police and medical surveillance in 1868 under a
legislation called the CDA or the Indian Contagious Diseases Act (Act XIV—or Choudda Ain, the
dreaded term by which it came to be known among the prostitutes of Bengal at that time). Under
the Act, the prostitutes were required to (i) compulsorily register themselves; (ii) subject themselves
to periodic medical examination; (iii) undergo compulsory treatment; and (iv) were forbidden to live
in specified areas. The violation of the provisions of the Act by the offender invited ‘imprisonment
with or without hard labour for any term exceeding three months’.14
Thus, the colonial administration institutionalised under a law the violation of the prostitute’s
body and psyche, in a sense legalising her profession as a licensed crime. She was allowed to function, but under administrative mechanisms of control and surveillance (such as legal provisions
that restricted her movements, requiring her to register and go through medical examinations and
so on). At the same time, she was damned as a criminal, her profession equated with activities such
as dacoity, murder, gambling, swindling, etc., which were punishable under the newly enacted IPC
of 1860. All through the 1870s and till the repeal of the Act in 1888, prostitutes were arrested
every day for breaching the rules of the CDA.
Significantly, the majority of them were apprehended for non-compliance with medical
examination, which the prostitutes resisted for mainly two reasons: first, the brutal treatment that
they received in the lock hospitals (the institutions that were set up by the government for their
examination and medication); second, the financial loss the prostitutes incurred by detention in
the hospitals. The prostitutes were mortally afraid of the treatment that they had to undergo if they
were found infected. Antibiotics had not yet appeared on the scene, and the therapy used those
days was the excruciatingly painful application of mercury and caustic salve on the venereal sores.
Contemporary English women’s groups condemned this practice of forcible medical examination
of prostitutes (which was followed under a similar Contagious Diseases Act in operation in England
at that time) as a male doctor’s infringement of female privacy and liberty.
Furthermore, if found diseased after examination, the prostitute was required to be confined
to the lock hospital for treatment, which meant a long period of no work, and, as a result, loss of
income for herself and lack of food and essentials for her dependants at home. It was no wonder,
therefore, that most of the prostitutes tried to escape medical examination which, to them,
amounted to medical rape.15
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Sumanta Banerjee
Significantly, the British judges, who claimed to have introduced the principle of fair justice in
India, never for a moment thought of penalising the men who patronised the prostitutes. Since
prostitution was a trade (sale of sex), it could not, obviously, survive without the active participation
of the (male) purchaser. If it was to be considered a crime, both the participants—the seller and the
buyer—should have been treated equally under the principle of fair justice of British jurisprudence.
But the seller, in this case the prostitute, was doubly damned. Poor and socially ostracised, to start
with, she easily attracted the punitive measures that were part of the general colonial practice of
repressive legislations designed to enforce social discipline on the Indian underprivileged.
Thus, the British administration drove prostitution into the seedy nooks and corners of the
criminal underworld. Prostitution’s close association with the dens of crime in an urban metropolis
like Calcutta, where it had to seek protection for its survival, reinforced the colonial justification
for treating it as a crime. The tendency to equate and associate prostitution with criminal activities becomes explicit in the observations made by a British police official posted in India in the
last decades of the 19th century: ‘Prostitution…is the root cause, the source and mainstay of our
brothels, opium dens and gambling saloons….’
He then added:
The sexual element predominates in all such haunts of vice and crime and is such a fruitful
source of income that I doubt if there is a single ‘Night Haunt’ in Calcutta, which does not
harbour a few of these unfortunate women to cater for their regular customers, or by singing
and dancing, attract fresh trade….16
A PROSTITUTE-TURNED-SERIAL KILLER
Among the records of female criminals in old Calcutta, the adventures of a prostitute named
Trailokya provide us with a fascinating story of a woman’s transition to a serial killer in her struggle
for survival in a hostile city in the late 19th century. She could be described as a female Jack the Ripper
(an English serial killer who terrorised London in 1888). In Calcutta’s police records and English
newspaper reports, Trailokya’s name appears as Troylucko Raur (Trailokya the ranr, or whore).
On 3 September 1884, she was sentenced to death by hanging.17
Trailokya was born in a village and married off as a child to an old man who died soon after.
The young widow was taken into care by a Vaishnavite woman who was actually a procuress. She
introduced the girl to a man who seduced her and took her to Calcutta, where she was sold off to
a madam of a brothel in Sonagaji, the city’s traditional red light area. As long as she was young,
Trailokya attracted rich customers, enabling her to earn enough to eventually build a house and
own a horse-drawn carriage. But the passing years led to a steady decline in the flow of customers
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41
and less income. She had, meanwhile, adopted a boy Hari (son of one of her lovers), who also had
to be brought up. She sold her house and carriage and survived by pawning her ornaments. With her
adopted son, she moved into a small hut in a dingy lane further west in the city, utterly distressed.
She had to think of other stratagems.
The only way out left was extreme—killing people who could yield money. She renewed
acquaintance with her old friends in Sonagaji, prostitutes she had known for a long time. She told
them that she had become a disciple of a guru who could work miracles. She would then pick
out one of them, persuade her to deck herself in all her expensive ornaments on the pretext of
introducing her to the guru who, she promised, would double the amount of ornaments she wore,
and lure her to a desolate spot near a pool in the city. As the woman would enter the pool to bathe,
Trailokya would drown her and strip her of her jewellery. In this manner, she beguiled and killed
a number of her old acquaintances. No one suspected her, since although the police recovered
the bodies from the pool, the doctors certified that they had died of a natural cause—drowning.
In those days in Calcutta, forensic science was in its infancy, and deciphering fingerprints was yet
to be used as a scientific method by the police. It was only in 1897 that the Indian government
adopted the fingerprint system, which was devised by the then Inspector General of Police in
Bengal, Edward Richard Henry.
For Trailokya, murder became the ultimate signature of economic necessity and survival, which
knew no class or gender boundaries. Once she had lost her rich male customers, she turned her
attention to her own erstwhile colleagues, whom she had no qualms in killing. Jewellery was the only
asset they had, which they bought with whatever they could save from their earnings and hoarded
to see them through their lean days and old age. Although herself a victim of male exploitation,
Trailokya did not seem to have been moved by her past shared concerns with her colleagues. She
unerringly struck at the most vulnerable part of their existence.
But there was another side to this totally amoral and cold-blooded woman’s character. Her
affection for her adopted son, Hari, knew no bounds. In fact, it was to bring him up that Trailokya
spent the last years of her life in trying to acquire blood money. Her last desperate act was to kill a
prostitute named Rajkumari, her neighbour in the brothel where she lived with Hari. When a police
detective first raided the brothel to investigate Rajkumari’s murder, he could not find any evidence
that implicated Trailokya, although she had figured prominently in his list of suspects. In order to test
her, the detective bribed her neighbours in the brothel to give evidence to the police that Trailokya’s
adopted son Hari, who was by now a young man, had murdered Rajkumari. Watching the police
dragnet closing in upon her son, Trailokya broke down, took the police detective aside and confessed
that it was she who had murdered Rajkumari. After her arrest and conviction, the detective visited
her on the eve of her execution in her death cell. Her last words to him were: ‘I am leaving Hari
behind. It would be nice if you inquire about him once in a while. Please look after him so that
he does not get into trouble.’18
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Sumanta Banerjee
Trailokya’s strong urge to bring up and protect her adopted son seems to have been a powerful
motivating factor in her engagement with crime in the latter period of her career. Some can interpret this behaviour of hers as rooted in the so-called genetically-determined character of the female,
who is supposed to be devoted to the maternal instinct of looking after her biological offspring. In
point of fact, though, Trailokya had not given birth to Hari: he was fathered by her lover, Kali Babu
from another liaison. However, she somehow took a fancy to the child and and got tied up to him
for the rest of her life.
Besides, not all women criminals behaved in the same way with children. The police detective,
Priyanath Mukhopadhyay, who had arrested and interviewed Trailokya in her death cell, narrates
in his memoirs another incident where he investigated a case involving a housewife who had no
compunctions in killing her own seven-year-old son, who had accidentally found her entertaining her lover during her husband’s absence. When the boy threatened to spill the beans, she had
struck him with a kitchen knife, killing him instantly.19
GIRL OFFENDERS IN THE EYES OF THE COLONIAL JUDICIAL SYSTEM
One significant characteristic of the urbanisation process in 19th century Calcutta was the rise of
juvenile crime, a phenomenon relatively unknown in pre-colonial Bengal. The crowded metropolis
was dotted with slums inhabited by people who had migrated from the villages in search of work.
Both men and women toiled from morning till night either in factories as workers or in private
households as menials, and consequently had little time for their children. Alienated from their
social roots, deprived of guidance or protection, these children grew up in the streets and learnt to
fend for themselves the hard way. Some of them were picked up by underworld gang leaders who
trained them in the art of the pick-pocketing, their delicate fingers and deft movements making
them best qualified for the job.20 The ‘second city’ in the British Empire was no different from
England’s capital, London, where at around the same time ganglords like Fagin were recruiting
little migrant boys like Oliver Twist—as described meticulously by Charles Dickens in 1867.
But it was the girls among these street children who had to train themselves to brace their
bodies and minds—much earlier than the boys—in order to cope with the grim reality. In the
abominable surroundings of the dingy slums in which they grew up, the girls were the first to get
exposed to patriarchal exploitation and male predation from the moment they reached puberty.
They passed directly from childhood to adult status; the boys of their age smoothly graduated to
pick-pocketing. For these girls, it was a physically violent and mentally traumatic process, which
finally forced them to end up in police custody as ‘juvenile criminals’. While some of these girls
were listed in police records as child prostitutes, others were accused of being harbourers of thieves
and robbers and active accomplices of cocaine and opium smugglers.21
Victims and Villains
43
Girl offenders—whether from the underworld or from domestic households—remained on
the receiving end of the penal system of the day. For instance, the Calcutta High Court passed
judgement on a 10-year-old girl, Aimona, on 14 December 1864. She was accused of killing her
19- or 20-year-old husband, Infanoola, with a chopper while he was asleep. The provocation
was the beating she got from her husband for ‘some act of mischief ’ some 10 or 12 days previous
to the murder. The IPC said, ‘Nothing is an offence which is done by a child above seven years
of age and under twelve, who has not attained sufficient maturity of understanding to judge of
the nature and consequences of his conduct on that occasion’ (Section 83). But the two English
judges of the High Court, B. Kemp and F.A. Glover, felt otherwise. ‘One girl of ten,’ they reckoned,
‘may have as much cunning as another of twelve.’ Then, to bolster their arguments, they fell back
on the prevalent misogynist understanding of girls in India as little devils who were more adept
than boys in taking to crime. Asserting that ‘in this country girls are very precocious,’ the two
honourable judges charged the 10-year-old Aimona with murder. Sticklers for rules, the judges
said that following the conviction, ‘the only sentence the court can legally pass is one of death
or transportation for life.’ But since they also had to live up to the Raj image of the ‘benevolent’
English judge, they announced: ‘… taking into consideration the age of the prisoner, we pass the
lighter sentence of the two—transportation for life!’22
CRIMINALISING FEMINITY
The colonial reconfiguration of crime and women in Calcutta should be located in the context of several developments and social attitudes that were determining official policies both in
England and its colonies. First, English society was becoming sharply polarised by increasing
upper-class hostility and repression against the rebellious working and marginalised underclass.
Second, these hostile postures extended to the urban poor in the colonised population who thronged
cities like Calcutta and refused to adapt or succumb to the new rules imposed by the colonial
administration. Third, in this confrontation between the colonised poor and the colonial rulers,
the role of women underwent a radical change: it was subjected to a redefinition that reduced them
to the position of the lowest among the low, the worst of the worse, and, consequently, potentially
ripe agents of crime.
To start with the first of the three factors mentioned above, class divisions hardened during
the Industrial Revolution in the transitional economies of the Western countries, with growing
destitution and immiseration. The labouring poor—either aggressively demanding better wages or
surreptitiously violating the laws of the state in order to survive—were looked upon by the establishment as a threat to social stability. They came to be associated with chaos, crime and epidemics,
and were feared as the ‘dangerous classes’.23 The English upper class tendency to identify poverty
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Sumanta Banerjee
with waste matter, crime and pestilence was expressed candidly in their time-honoured mouthpiece,
The Times, in 1888, which, describing the miserable living conditions of the labouring poor in
Whitechapel in inner London, wrote:
We have long ago learned that organic refuse breeds pestilence…. Can we doubt that neglected
human refuse as inevitably breeds crime, that crime reproduces itself like germs in an infected
atmosphere, and becomes at each successive cultivation more deadly, more bestial, and more
absolutely unrestrained.24
The criminalisation of the poor was underpinned by contemporary positivist theories such as
those of Cesare Lombroso (1836–1909) who supported the concept of genetic determinism and
believed that certain individuals were born with antisocial tendencies which they supposedly
derived from, what Lombrose and his cohorts believed as, the barbaric stage of human evolution.
The London poor were found by the establishment to perfectly fit the bill.
This brings us to the second issue. It was this loathing of the poor, associated with the fear of
their demands, perceived as threatening, which was embedded in the psyche of the British colonial
administrators who ruled India. This colonial attitude was reinforced by the sight of a subject
race’s alien habits, which the administrators were trained up to consider as ‘heathen’ criminal acts
that needed to be eradicated. What with practices like ‘suttee’ and ‘thugee’, Indians were already
stereotyped as an uncivilised people with criminal propensities. When the poorest among them
started congregating in Calcutta, the English inbred suspicion and fear of the poor resurfaced in
the thinking of the city’s administrators. The underclass that lived in the slums of Calcutta became
the main targets of surveillance and persecution by the city’s police administration. A variety of
laws was enacted by the government to punish the slum dwellers who refused, or failed to, abide
by the rules and regulations laid down by the authorities with regard to sanitation and public
behaviour on the streets. They were hauled up as criminals, jailed and fined.25
British officials harked back to Lombroso’s theory of genetic determinism while treating the
native population of Calcutta. Thus, the then Health Officer of the city, C. Fabre-Tonnerre, stereotyped Indians living there as a dirty people in the following words:
To anyone who knows the habits of the Natives of India, and their indifference to considerations of cleanliness, the difficulty of applying the laws of Sanitary Science to some of the densely
crowded parts of the Town, and to the habitations of Natives in general, will be evident, more
especially when he considers the most obvious nuisances existing in Calcutta are the natural
habits transmitted from generation to generation.…26
It was just a single step from this that led to the third development that affected the fate of
the women of the poor classes in Calcutta. For a long time, the Occidental concept of the Oriental
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45
woman had been a curious mix of erotic fascination and unknown fear, bred by stories of harems
and enchantresses written by Western travellers of the 17th–18th century. When the British
took over the reins in Bengal, the first thing that they did was to advise their soldiers and clerks
against the ‘seductive allurements’ of the native women. Indian women were suspect from the
beginning, as evident from the following warning in an early 19th century guidebook prepared by
an Englishman, Captain Thomas Williamson, for his countrymen who set their feet in Calcutta
for the first time:
Totally ignorant of the language, and without any guide, it is by no means surprising that so
many impositions are practiced on our countrymen as soon as they arrived in India…. Add
the allurements held out by the sable beauties, who will contrive means to retail their charms
so long as they think money is to be had.
He then cautioned the newly arrived young Englishman how ‘fatal consequences’ followed
their association with such women, ‘never failing first to drain the purse, and, in a few days or
weeks, the constitution also.’27
More than the drain on the purse, the ‘constitution’ of the British soldiers became the primary
concern of the British authorities in the latter half of the 19th century. Following the inherited
tradition of suspicion of Indian women, these colonial officials picked upon the poorest among
these women in Calcutta as scapegoats, accusing them of threatening the health and constitution
of their soldiers. The CDA not only criminalised the profession of prostitution but also damned
it forever as a diseased occupation.
The colonial policy towards Calcutta’s prostitutes reflected the contemporary European
aetiology about sexual diseases, which betrayed a patriarchal bias by blaming women primarily
for their spread. Thus, one English medical doctor, explaining the increased virulence of syphilis
in the port towns of England in the 1880s, said:
The fact is, that the slight irritation caused in the female by the early stage of venereal (disease)
rather excites than dulls the sexual appetite. As would naturally be expected from so many
women with excited sexual appetites being suddenly allowed to disseminate disease, there was
a large increase of syphilis among the men.28
The construct and representation of female criminality in 19th century Calcutta were moulded
by a mix of upper-class terror of malcontent lower orders, colonial distrust of the subject race
and patriarchal fear of female challenge. The threatened women of the poorer classes did, indeed,
challenge the ruling powers by transgressing the rules of the established order. Instead of remaining passive figures, they took centre stage in the new narratives of metropolitan life, their voices
resounding in the streets, police reports and courtrooms.
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NOTES & REFERENCES
1. Revised list of utterers and manufacturers of counterfeit coins for the year 1924. Calcutta: Bengal Government
Press.
2. Two chapbooks from which information has been gathered for the present argument are (i ) Dutta, Kedarnath.
1871. Sachitra Guljarnagar. Reprint. 1982. Calcutta: Pustak Bipani; (ii) Mukhopadhyay, Bholanath. 1863. Aponar
Mukh Apuni Dekho. Reprint. 1982. Calcutta: Pragya Bharati. The memoirs left by policemen which are of relevance
in this connection are (i) Mukhopadhyay, Priyanath. 2004. Darogar Daptar, Vols I and II. Calcutta: Punashcha.
(ii) Sukumar Sen (ed.). 1982. Bankaullar Daptar. Calcutta: A.K. Publishers.
3. Crimes of Calcutta. Calcutta: N.L Bhattacharya, 1926.
4. ‘Speculative ventures’ varied from buying and selling of land and property, to investment in different types of
business, and the institutionalised form of gambling in horse races.
5. Mukhopadhya, Priyanath. 2004. Darogar Daptar, Vol. 1, p. 16. Kolkata: Punashcha.
6. Ibid., pp. 199–201.
7. Dey, Sushil Kumar. 1985. Bangla Prabad. Kolkata: A. Mukherjee and Company.
8. Bhattacharya, Rimli. 1990–91. ‘Public Women: Early Actresses of the Bengali Stage—Role and Reality’, in Geeti
Sen (ed.), The Calcutta Psyche. New Delhi: Rupa & Co.
9. Mukhopadhya, Priyanath. 2004. Darogar Daptar, Vol. 2. Kolkata: Punashcha.
10. McGuire, Thomas. 1884. Professional beggars: Being sketches of beggars, begging letter-writers and imposters, from
personal observation. Calcutta: D. Rozario & Co.
11. Ibid., pp. 40–41.
12. From an article by H. Anderson, quoted in Mukherjee, S.K. 1935. Prostitution in India, pp. 467–68. Calcutta:
Das Gupta & Co.
13. ‘Report of the President of the Sanitary Commission’, dated 21 March 1864, quoted in a letter from the Government
of India to Her Majesty’s Secretary of State for India. Calcutta. 27 March 1888. Home-Sanitary files, 1888 A. June.
Nos. 102–15. NAI (National Archives of India).
14. Home Public Files. 20 February 1869, pp. 112–15. NAI.
15. For a detailed account of the operation of the CDA, its impact on the prostitutes of Calcutta during the period, and
their sentiments as expressed in contemporary Bengali chapbooks, see the author’s Dangerous Outcast: The Prostitute
in Nineteenth Century Bengal. 1988. Calcutta: Seagull.
16. Somerville, Augustus. 1929. (Reprint: 1966). Crime and Religious Belief in India (1st edition), p. 1, Thacker
Spink & Co.
17. The Statesman and Friend of India, 4 September 1884.
18. Trailokya’s last testimony, where she made this request, is contained in Mukhopadhyay, Priyanath. 1920. Priyanath
Granthaboli. Calcutta: Basumati Karyalay. A critical analysis of her testimony can be found in this author’s forthcoming
book The Wicked City: Crime and Punishment in Colonial Calcutta.
19. Mukhopadhyay. 2004. op. cit., Vol. 2, pp. 117–32.
20. An excellent account of the use of child pick-pockets by ganglords in Calcutta during this period is available from
a Bengali book, Chaudhury, Panchanan Ray. 1907. Ajob Sahar ba Bhaber Chiriakhana. Calcutta: Panchanan Ray
Chaudhury.
21. Bhattacharya, N.L. 1926. Crimes of Calcutta. Calcutta: N.L. Bhattacharya.
22. Weekly Reporter, Vol. I., Calcutta. 1864.
23. Chevalier, Louis. 1973. Laboring Classes and Dangerous Classes in Paris During the First Half of the Nineteenth Century.
New York: Howard Fertig.
Victims and Villains
47
24. Quoted in Walkowitz, Judith R. 1992. City of Dreadful Delight, p. 195. University of Chicago Press, USA: Virago
Press.
25. Following the enactment of Act VI (BC) of 1863, Act IV of 1866 and Act IX of 1869, the number of prosecutions
and convictions for violation of conservancy rules in Calcutta were between 8,000 and 10,000 every year. ‘Report
on the Administration of the (Calcutta) Municipality for the year 1865’, dated 2 April 1866, Home Public, August
1867, No. 239, 240, NAI and ‘Administration Report of the Calcutta Municipality for 1875’, Printing Office of
the Justices, Calcutta, 1876, NAI.
26. ‘Report of the Administration of the Calcutta Municipality for the Year 1865.’ Home Public, August 1867,
No. 239, 240, Appendix No. 5. NAI.
27. Williamson, Captain Thomas. 1810. East Indian Guide and Vade Mecum, quoted in Hobbs, Major H. 1943. John
Barleycorn Bahadur: Old Time Taverns in India. Calcutta, pp. 118–20.
28. Note by Moore, W.J., C.I.E., Surgeon-General. October 1886. Reproduced in Report by Brigadier-General F.A.
Adam, Quarter-Master General. No. 10-154-24. Poona, 3 January 1888. Home-Sanitary. June 1888. NAI.
3
‘That Despicable Specimen of Humanity’:
Policing of Homosexuality in India
Arvind Narrain
INTRODUCTION: OF NUTS, SLUTS AND PERVERTS
Queer theory is suggesting that the study of homosexuality should not be a study of a
minority—the making of the lesbian/gay/bisexual subject—but the study of those knowledges
and social practices that organize ‘society’ as a whole by sexualizing—heterosexualizing or
homosexualizing—bodies, desires, acts, identities, social relations, knowledges, culture and
social institutions.
Steven Siedman1
What is unique about criminology, indeed its defining characteristic is ‘the central question
of the causes of crime and the ultimate focus on the offender…. It is this defining characteristic I wish to take issue with here. Arguably it is this which creates a kind of vortex in this
area of intellectual endeavour. It is the ultimate question against which criminology is judged.
Can the causes of crime be identified and explained? Moreover once identified, can they be
modified?
Carol Smart2
The distance between queer theory and criminology appears to be an unbridgeable chasm based
upon the very divergent starting points of the two disciplines. Much as queer theory tries to avoid
studying the homosexual and focus instead upon knowledge and social practices, which organise
sexuality in society, criminology returns to the task of identifying the homosexual. Smart’s frustration
is with how obsessively criminology returns to the question of who the criminal/homosexual is.
‘That Despicable Specimen of Humanity’
49
In a provocative piece titled ‘Was Lombrosio a Queer?’, Tomsen engages with what he calls
the hidden sexuality of much of early criminological work. Tomsen highlights the homoeroticism
of criminology’s concern for young male offenders. As he puts it, criminology is invested in
‘Photographing and intricate measuring of the physical details of hundreds of young naked
offenders’. He notes ‘the generation of an elaborate and arcane account of masculine bodies with
certain anatomical features’.3 Positivist criminology was clearly heavily invested in the male body
as a locus of understanding crime and its causes.
However according to Groombridge, the early criminological interest in the sexuality of the
male offending body was increasingly overshadowed by the criminalisation of sodomy by law and
by the construction of homosexuality as a pathology within medicine. It was the criminalising
project of law, as well as the pathologising perspective of medicine, which took over the project
of regulating what was then referred to as ‘deviant sexuality’. This was fine-tuned legally through
the anti-sodomy statute and medically by categorising homosexuality as a perversion.
The homosexual however emerged as a central figure of criminology only with the emergence
of the sociology of deviance. This field was characterised by Liazos as the study of ‘nuts, sluts and
perverts’.4 As he puts it:
…deviant still seems different. I began to suspect this reverse effect from the many essays and
papers I read while teaching the ‘deviance’ course. The clearest example is the use of the word
‘tolerate’. Students would write that we must not persecute homosexuals, prostitutes, mental
patients and others, that we must be tolerant of them. But one tolerates only those who one
considers less than equal, morally inferior and weak; those equal to oneself, one accepts and
respects; one does not merely allow them to exist, one does not ‘tolerate’ them.5
However, the terms in which criminology studied homosexuality changed radically with the
emergence of the queer rights movement. The emergence of a vibrant queer movement has
challenged the very understanding of the homosexual as a ‘criminal/deviant type’. A period of
sustained struggle has resulted in a change in the perception of the homosexual from being a criminal to a (still tenuously recognised) rights-bearing subject. This had its legal implications in the
decriminalisation of sodomy in a number of jurisdictions and the increasing acceptance of same
sex marriage and partnership laws.6 The acknowledgement of the freedom to engage in homosexual
relationships as an essential part of the right to be human has meant that today the queer movement
has, to some extent, succeeded in getting the gaze of criminality to focus not on the homosexual
but on those who threaten homosexual rights—the queer bashers. There has been a ‘recoding of
the homosexual as completely normal and homophobia as uniquely deviant’.7 There is a discursive
shift of the homosexual from being the object of ‘deviance studies’ to being the latest addition to
the ‘list of victims studied by realist and critical criminology/victimology’.8
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Arvind Narrain
Tomsen notes how the issue of the hate crime has emerged as a key category of mobilisation
for gay and lesbian communities. This has led to interventions with the police to bring about
some degree of change in the police-minority relationships towards more sensitive policing and
more effective investigation of hate crimes perpetrated against the queer community.9 However, as
Tomsen notes, this shift is not entirely unproblematic because what the campaigning for anti-hate
crime laws leaves fundamentally unquestioned in the relationship of queer struggle to the criminal
justice system (CJS).
Leslie Moran uses the work of David Garland to draw attention to the changing nature of the
CJS. The CJS, in Garland’s understanding, is moving towards a new emphasis on the punitive aspects
of justice. ‘Welfare, reform, rehabilitation and due process have either diminished or disappeared
as key organizing criteria. State practice is now oriented towards punishment and segregation.
Collective well being is now borne of selective exclusion and containment.’10
Moran raises the question that if there is indeed an intimate link between law and violence, what
does it mean to advocate in favour of hate crimes legislation? Moran sees this as a realignment of
queer struggles with demands for punitive segregation. As he puts it:
Lesbian and gay activism demanding that homophobic hate be taken seriously is a demand for
law’s violence. This is a politics of law that is in stark contrast to that found in much of lesbian
and gay activism and legal scholarship that has, to date in so many instances, documented the
operation of law as violence against lesbians and gay men and offered critiques of that violence.…
The demand for criminalization of homophobic hate as a demand for punitive segregation raises
the question of law’s violence as a resource for lesbians and gay men’.11
Garland adds: ‘In Moran’s analysis, the contradictions and limits involved in the uncritical use
of ‘law’s violence’ could very well return to ‘haunt lesbians and gay men who become the objects of
law’s violence’.12
Groombridge makes the point that much of the interest in the interface between the CJS and
the regulation of sexuality has come from the field of legal studies. Sociology and criminology have,
by contrast, exhibited lesser interest in the question of the regulation of homosexuality.13 Some
of the interesting work in the field of the regulation of homosexuality has come from scholars
within a broad socio-legal tradition. This has led to a focus on questions of policing of homosexuality
as a practise of governance,14 understanding the harm of unenforced criminal laws15 and looking at
the constitutive role of law.16
In the Indian context, the relevance of criminology to the Indian queer person is still to be
demonstrated. Indian criminology has not taken seriously the issue of hate crimes against those
‘That Despicable Specimen of Humanity’
51
who violate gender and sexuality norms in spite of ample evidence that gender transgression results
in brutal violence.17 The criminalisation of homosexuality in India results in a situation where hate
crimes against queer people enjoy absolute impunity.18
If such is indeed the focus of criminology, how does one then speak from the standpoint of
the person who stands criminalised, that is, the queer person?19 If we examine the Indian context,
it is the criminalisation of what the law calls ‘unnatural offences’ that holds sway. In other words, in
Indian law, queer people, or those who challenge the norms of gender and sexuality, are criminals.
In such a context, what would an intervention from the queer standpoint look like?
In such a context, work within the discipline of criminology will have to consistently focus on
the socio-political process by which homosexual acts came within the ambit of criminal law and
what the impact of this law has been on queer people—and, hence, the urgent necessity of doing
away with this law. Of most interest to scholars within the Indian context is the emerging literature
on the constitutive role of law as well as the harm that enforced criminal laws do. The Indian legal
framework that regulates homosexuality should be examined from the perspective of some of the
new insights generated by socio-legal scholars.
What can be done from the queer standpoint is to illuminate the series of moves by which the
law succeeded in criminalising non-normative sexual acts and succeeded in ascribing these acts
to a person, namely, the homosexual. The story of the way the law inscribed its power over the
homosexual is equally a story of the complicity of the medical discourse. What was the consequence
of this system of power for those who bore the brunt of it needs to be told.
Finally the story of power is also the story of resistance to power and invoking Foucault, what
is significant is how power’s attempt to define and control is resisted by the homosexual. As
Foucault puts it:
These points of resistance are present everywhere in the power network. Hence there is no
single locus of Refusal, no soul of revolt, source of all rebellions, or pure law of the revolutionary.
Instead, there is a plurality of resistances, each of them a special case: resistances that are possible, necessary, improbable; others that are spontaneous, savage, solitary, concerted, rampant,
or violent; still others that are quick to compromise, interested or sacrificial; by definition, they
can only exist in the strategic field of power relations.20
Power is, by nature, never absolute, and the homosexual resists the project of the ‘expert knowledges’
by taking on the very identity of the homosexual as an identity of political resistance. It is important to understand the series of steps by which the homosexual is transformed from being a mute
subject to a vocal resister of the criminal law.
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Arvind Narrain
THE CONSTRUCTION OF THE HOMOSEXUAL IN JUDICIAL DISCOURSE
The policing of homosexuality happens in many social and political contexts—the family, marriage,21
the medical establishment22 and the media play a strong role in the simultaneous stigmatisation
of homosexual relations and the stabilisation of heterosexual relations as the norm.
The family, the medical establishment and criminal law play different roles in regulating deviant
sexuality and, thereby, stabilising heterosexuality. There is an interconnection between these different modes of regulation. As Nicola Lacey argues:
The coercive power of the criminal law in the public sphere are supplanted in the private sphere
by the more subtle but no less ideologically powerful dominion of the family. Seen in this way,
the family is not beyond the purview of the state, but is itself an important means of regulating
sexual morality.23
Since each of these institutions has its particular history in terms of how homosexuality is
regulated, a focus on any one institution will tell only a partial story of how queer sexualities are
regulated. For example, a key gap which emerges from a focus on the law is a relative neglect in
understanding the role of the family. The importance of examining the family as a node of regulation cannot be underestimated as it is the family which is the locus of oppression, particularly when
it comes to lesbian women. It is the coercion built into the institution of marriage which results
in the tragic phenomenon of lesbian suicides.24
While noting the importance of critical work which will understand the dynamics of both the
medical establishment and the family as nodes of regulation, and the incompleteness of any study
which does not examine these two institutions, this article will examine one strand of regulation,
that is, criminal law. Nicola Lacey identifies a moral and retributive framework within which we
can locate the criminal law.
From the first point of view:
…criminal law is a system of quasi-moral judgement which reflects a society’s basic values; in
which criminal punishment serves the retributive function of meting out to offenders their just
deserts; and in which the criminal law has a strongly symbolic function…. Secondly, we have to
acknowledge that criminal law has a regulatory, instrumental or utilitarian aspect: in other words
it prohibits certain things on grounds of public health or safety, or for economic or political
reasons, and sees the purpose of punishment as deterring that behavior.25
The uniqueness of criminal law as a normative system of regulation is that the norm set in
place is enforced by the brute power of the state. The power of criminal law in policing deviant
‘That Despicable Specimen of Humanity’
53
behaviour lies precisely in the fact that it is backed up by the power of the state. It is the combination of a moral and regulatory function which makes criminal law a potent force in the regulation
and control of queer sexualities.
The Prehistory of Section 377 of the Indian Penal Code
It was colonial law which introduced a new element in the policing of sexuality. What in precolonial times was policed by a multiplicity of authorities, from the family to the samaj, was now
supplemented by a legal order which brought in new notions of what was or was not acceptable
sexuality.
The most direct legal command on the notion of unacceptable sexuality was Section 377 of the
Indian Penal Code (IPC), 1860: Section 377.
Unnatural sexual offences: Whoever voluntarily has carnal intercourse against the order
of nature with any man, woman or animal, shall be punished with imprisonment for life, or
imprisonment…which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this section.
The predecessor to Section 377 of the IPC was the Draft Code of 1837 which defined certain
new offences, such as the offence of unnatural lust. Clause 361 of the Code stated:
Whoever intending to gratify unnatural lust, touches for that purpose any person or any animal
or is by his own consent touched by any person for the purpose of gratifying unnatural lust,
shall be punished with imprisonment of either description for a term which may extend to
fourteen years, and must not be less than two years.
Clause 362 stipulates the punishment for the same offence when it is committed or attempted
without the other person’s consent.
More interesting than the provision itself is Lord Macaulay’s reticence even as he went about the
task of putting in place a notion of sexual morality. Commenting on the provision, he noted:
Clauses 361 and 362 relate to offences respecting which it is desirable that as little as possible
be said…we are unwilling to insert either in the text or in the notes anything which could
give rise to public discussion on this revolting subject, as we are decidedly of the opinion that
the injury which could be done to the morals of the community by such discussion would
more than compensate for any benefits which might be derived from legislative measures framed
with greatest precision.26
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Arvind Narrain
The interpretation of Section 377 of the IPC has a history that is now more than 147 years old.
Judicial decisions under Section 377 are, by and large, confined to decisions of the High Courts,
with very few Supreme Court decisions. In the decisions by the High Courts and the Supreme
Court from 1884 up to the 21st century, the homosexual has emerged as a figure with certain
characteristics.27 The sections that follow will explore various aspects of this discourse.
Conflation of Sodomy with Non-consensual Sex
The reported judicial decisions under Section 377 are, by and large, prosecutions of non-consensual
sex between men, on the one hand, and children, women and other adult men, on the other.28
While this may be the judicial history of Section 377, it is important to note that what the judiciary
does while dealing with cases of non-consensual sex is conflate the cases with the broader rubric
of homosexuality as an offence in itself.
In Emperor vs Mohamed Yousif,29 which was a case of a young lad who was forcibly sodomised
by the accused, the court held that ‘sodomy is one of those offences for which there can be hardly
any extenuating circumstances; and even if so it cannot justify an over lenient sentence of four
months rigorous imprisonment’.
In Fazal Rab Choudary vs State of Bihar,30 which was also a case involving a young boy, the
court noted, ‘The offence is one under Section 377 IPC, which implies sexual perversity. No force
appears to have been used. Neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking.’
In T.K. Gopal vs State Karnataka,31 which was a case in which the accused was tried for rape
under Section 376, the judge goes on to make remarks about homosexuality. The judge noted:
Sexual offences, however, constitute an altogether different kind of crime, which is the result
of a perverse mind. The perversity may result in homosexuality or in the commission of rape.
Those who commit rape are psychologically sadistic persons exhibiting this tendency in the
rape forcibly committed by them.
In Mirro vs Emperor,32 which was also a case involving a boy who was forcibly taken away for
an unnatural offence, the court noted: ‘It seems clear to us, that he is not only a desperate character
but is a man of depraved morality.’
In Mihir vs State,33 which was a case involving a minor girl, the court noted, ‘Unnatural
carnal intercourse is abhorred by civilized society, which is reckoned as a crime and therefore is
punishable with strict sentence. Unlike an offence of rape u/Sec 376, consent of the victim is
immaterial.’
‘That Despicable Specimen of Humanity’
55
There is a discursive continuity in terms of understanding homosexuality within the framework of perversion and offence from the earliest case in 1933 to the latest one in 2000. The coming
into force of the Constitution, with its commitment to fundamental rights, marks no turning point
in judicial discourse, which continues to conflate both consensual and non-consensual sodomy
under the heading of ‘unnatural offences’, thereby tarring both with the same brush of crimes
which are ‘abhorred by civilized society’.
Widening the Reach of Criminal Law
The task before the judiciary was to understand the series of acts which were criminalised under
Section 377 of the IPC. In the past 148 years, the judiciary has succeeded in progressively getting
more and more sexual acts within the ambit of criminal law.
In 1884, the Court was confronted with the case of a man who ‘forced open a child’s mouth
and put his private parts and completed his lust’. The Court held that ‘to constitute the offence of
sodomy, the act must be in that part where sodomy is usually committed’, and on the basis of this
reasoning held that the act of oral intercourse was not an act criminalised under Section 377.34
However, by 1914, the Court noted in the much-cited Khanu vs Emperor, that ‘the natural
object of sexual intercourse is that there should be the possibility of conception of human beings,
which in the case of coitus per os [oral intercourse] is impossible’. It then went on to define sexual
intercourse as:
…the temporary visitation of one organism by a member of the other organisation, for certain
clearly defined and limited objects. The primary objective of the visiting organisation is to obtain
euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no
intercourse unless the visiting member is enveloped at least partially by the visited organism, for
intercourse connotes reciprocity. Looking at the question in this way it would seem that [the]
sin of Gomorrah is no less carnal intercourse than the sin of Sodom.35
The decision in Khanu laid the parameters by which Section 377 would be interpreted right
up to contemporary times. The significance of the Khanu principle—that the object of Section 377
was to criminalise forms of sex which were penetrative and which did not result in procreation—
formed the basis for all future judicial decisions. One can speculate that judges in India were
also responding to a global trend, the attempt of which was to criminalise all forms of sex between men.
The global trend began in Britain with what was called the Labouchere Amendment. On
6 August 1885, as the House of Commons was considering raising the age of consent for heterosexual
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Arvind Narrain
intercourse, Member of Parliament Henry Labouchere proposed a law that would, for the first
time, make any form of sex between men a crime. Anal sex had been illegal, but Labouchere’s
amendment extended punishment to ‘any act of gross indecency’ in public or in private’.36 This move
in Britain resulted in states in the US also criminalising oral sex between men. As Eskridge notes,
‘By 1921, all of the states containing big cities, except Texas, had updated their criminal laws to
make consensual oral sex a felony.’37
The postcolonial era witnessed a further expansion of the ambit of Section 377 keeping in mind
the principle laid down by Khanu. In Lohana Vasantlal Devchand vs State,38 the court expanded
on the logic of Khanu to lay down the imitative test. Under this test,
what is important is whether there was an act of imitating the actual act of sexual intercourse
or carnal intercourse. If it was an imitative act of sexual intercourse to appease his sex urge or
the sexual appetite it would be an unnatural offence punishable under Section 377 of the Indian
Penal Code.
The logic of Khanu and Lohana Vasantlal was followed in the case of Brother John Anthony
vs State39 wherein the court had to decide the question about whether ‘the act of committing
intercourse between the thighs is carnal intercourse against the order of nature’. The court
decided that:
in intercourse between the thighs, the visiting male organ is enveloped at least partially by the
organism visited, the thighs, the thighs are kept together and tight.… The word ‘insert’ means
‘place, fit, thrust’. Therefore, if the male organ is ‘inserted’ or thrust between the thighs there is
‘penetration’ to constitute unnatural offence.
This decision followed the State of Kerala vs Govindan decision where to the Court decided
that ‘thigh sex also amounted to an offence under Section 377’.40
What started out in Macaulay’s own words as offence about which as little should be said
has produced a judicial discourse which has sought to lay down the acts which comprise the
offence under Section 377. The immediate aftermath of the coming into force of the Penal Code
witnessed a judicial unwillingness to interpret Section 377 beyond the ambit of anal sex. However,
following the Labouchere Amendment in England and the changes in the laws throughout the
US, the judiciary clearly articulated that Section 377 also included the act of oral sex. The postcolonial era saw the extension of the criminalising ambit of Section 377 to also include thigh sex.
Going by the logic of Khanu, the journey from colonial law to the postcolonial era has been one
in which the reach of Section 377 has extended to include all forms of sex which do not result
‘That Despicable Specimen of Humanity’
57
in procreation. If one were to follow the logic of Lohana Vasantal, then Section 377 will extend
to all cases of imitative sexual intercourse. Thus, any sex which simulates penile-vaginal sex will
come within the ambit of Section 377.
While all the case laws discussed above are actually centred round non-consensual sex acts
between adult men and children, the logic of the law is wide enough to encompass consensual sex
between adults, who also fall within the ambit of the legal principles as they have been articulated
in the cases discussed so far.
From Sodomy to the Sodomite: The Role of Medical Jurisprudence
Foucault has famously noted:
As defined by the ancient civil or canonical codes sodomy was a category of forbidden acts;
their perpetrator was nothing more than the juridical subject of them. The nineteenth-century
homosexual became a personage, a past, a case history, and a childhood, in addition to being a
type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious
physiology.41
Medical jurisprudence plays a vital role in going beyond the task of identifying whether the act
took place to assigning qualities to the person on whom the act is performed. The role of medicine
is to go beyond the legal language and actually construct the physiognomy of the homosexual.
In a very early decision in 1884, (the somewhat aptly named) J. Straight was called upon to
adjudicate whether a person who habitually wore women’s clothes and exhibited physical signs
of having committed the offence had indeed committed the offence. The Sessions Court judge
noted:
The man is not a eunuch in the literal sense, but he was called for by the police when on a
visit to his village, and was found singing dressed as a woman among the women of a certain
family. Having been subjected to examination by the Civil Surgeon…he is shown to have the
characteristic mark of a habitual catamite—the distortion of the orifice of the anus into the
shape of a trumpet and also to be affected with syphilis in the same region in a manner which
distinctly points to unnatural intercourse within the last few months.42
Justice Straight decided that while he ‘appreciate[d] the desire of the authorities at Moradabad to
check these disgusting practices’, he was unable to convict Khairati as ‘neither the individual with
whom the offence was committed, nor the time of committal nor the place is ascertainable’.
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Arvind Narrain
In another case from 1934 in Sind, Mr Minawalla, who was caught having consensual sex with
another man, tried to escape conviction by showing through medical evidence that he was not a
catamite. As the judge noted:
Minawalla has made an attempt to rely on the evidence of a medical man who deposes that the
anus of a catamite is generally of a funnel shape and the anus of Minawalla did not exhibit this
peculiarity. But he admits that this indication is not infallible.43
The reported judgements cited above do not give us the full details of the way medical knowledge has constructed the sodomite. Only the full record of the trial court would help us understand
the nature of the medical examination and what it was trying to achieve.
In some ways, what completes the picture of the nature of medical knowledge and the ‘truth’ it
is trying to establish is a post-independence textbook on forensic medicine being used by medical
students in contemporary India.
As per the textbook, ‘Homosexuality means persistent emotional and physical attraction to
members of the same sex. As such it is an abnormal personality development.’ A significant marker
of being homosexual is the practice of sodomy. When sodomy is practised between two men,
according to the textbook, ‘they may alternatively act as active and passive agents’. The textbook
then goes on to list in great detail how a passive agent can be detected through signs which emerge
through medical examination. There is further categorisation of the passive agent with some
passive agents being seen as habitual passive agents. To give just a few examples of the ‘scientific’
markers of homosexuality, ‘in a habitual sodomite a complete relaxation of the sphincter occurs
with dilation of the opening which may be 4 to 5 cm in diameter through which rectum can
be seen’.44 ‘The muscle of the anus loses its tone and does not contract so readily when the skin
around it is pinched.’ The textbook exhibits the arbitrariness of this form of knowledge about
who a homosexual is by taking a different track from the Khairati judgement by noting that
‘a funnel shaped anus is very rare, and is usually an anatomical variant.’45 and by not connecting the
funnel shaped anus to homosexuality.
It is this knowledge which is brought to bear upon a person to determine whether he is a habitual
sodomite. As a person, the sodomite clearly owes much to medical discourse. The role of medicine
lay in extending the understanding of sodomy from being a mere series of acts to ‘sodomite’ as a
species. The role of medical evidence in prosecutions under Section 377 lies in establishing that
homosexuals have a variant anatomy, which becomes the basis for apprehending, in medical terms,
who homosexuals are.
What is interesting to note in both the Khairati and the Minawalla judgements is that the
medical evidence, while it did set the ground for understanding the act of sodomy by giving the
‘That Despicable Specimen of Humanity’
59
sodomite a distinctive physiognomy, was finally not of conclusive value in arriving at a decision.
In the Khairati case, medical evidence that was to be appreciated by the Court was not enough
to convict the accused; in the Minawalla case, it lacked enough credibility to acquit the accused.
Medical evidence as a form of knowledge was not enough to construct the dangerous person
who stood convicted on the basis of the ‘truth’ established by medicine.46 Medical knowledge did
supplement the law’s search for guilt but was unable to supplant the law’s evidential requirements.
Thus, although J. Straight saw the vice that Khairati exhibited as disgusting, he could not pass a
conviction because of the nature of legal proof. Juridical power has not yet been supplanted by
the institution of disciplinary power.
Thus the legal system refused to punish those who were sodomites, but asking instead for proof
of sodomy. If offenders such as Khairati were to be punished, then the law needs to be changed
to punish the person for being a sodomite. It is in this context that one needs to understand the
1897 amendment to the Criminal Tribes Act of 1871, which was sub-titled ‘An Act for the Registration of Criminal Tribes and Eunuchs’. The Act mandated the local government to maintain a
register of the names and residences of all eunuchs who ‘are reasonably suspected of kidnapping
or castrating children, or of committing offences under Sec 377 of the Indian Penal Code or of
abetting the commission of any of the said offences.’ Under the provisions of this statute, any
eunuch so registered who appeared ‘dressed or ornamented like a woman in a public street…or
who dances or plays music or takes part in any public exhibition, in a public street…[could] be
arrested without warrant and punished with imprisonment of up to two years of with a fine or
both.’47 It is only by reversing the fundamentals of the criminal justice system (presumption of
innocence) and enacting a law which is an exception to the Indian Penal Code that one could
successfully prosecute crimes which were based on status.
The practice which the Khairati judgement raises attention to is that of an increasing association in judicial discourse and police practice between certain acts and individuals. As Gupta
puts it, ‘There has been a tendency in Indian courts to create an association between the sexual acts
and certain kinds of persons, who are more likely to commit the act—thereby giving a character
and face to sodomy in the form of the homosexual’.48 Medical jurisprudence has played no small
role in this process.
Same-sex Desire and the Judicial Archive: Encounters with Section 377
Another requirement of mine, was that these personages themselves be obscure, that nothing
would have prepared them for any notoriety, that they would not have been endowed with
any of the established and recognized nobilities—those of birth, fortune, saintliness, heroism
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or genius; that they would have belonged to those billions of existences destined to pass away
without a trace; that in their misfortunes, their passions, their loves and hatreds, there would
be something grey and ordinary in comparison with what is usually deemed worthy of being
recounted; that nonetheless they be propelled by a violence, an energy, an excess expressed in the
malice, vileness, baseness, obstinacy or ill-fortune this gave them in the eyes of their fellows—and
in proportion to its very mediocrity—a sort of appalling or pitiful grandeur.49
Almost all the judicial decisions scrutinised so far have had to do with sexual intercourse
between adults and children. The question which comes to mind is: in the long history of the
enforcement of Section 377, surely there must be some decisions which speak of consenting carnal
intercourse between adults. Furthermore, is there space in the law’s narration for the emotions
which one associates with consensual sex, namely, desire and pleasure? Is it, indeed, possible to
put pleasure back into a judicial archive which ceaselessly focuses on the question of sexual intercourse? What would such a retelling look like?
A look into the judicial archive finds three appellate court decisions in which the protagonists are
consenting young men. All three decisions speak of ordinary lives, which achieve notoriety because
the protagonists were caught in the dragnet of power. At the same time, these ordinary—in fact,
everyday—acts of living disrupt the presumed heteronormativity of the social and legal order.
The three obscure couples whose lives take on a kind of pitiful grandeur by their misfortune
of getting prosecuted under Section 377 are Minawalla and Tajmahomed (D.P. Minawalla vs
Emperor),50 Nowshirwan Irani and Ratansi (Nowshirwan vs Emperor,51 and Ratan Mia and Abdul
Nur (Ratan Mia and another vs State of Assam).52 These three experiences need to be reclaimed
from the law so that we can ‘read these statements as an archive…to dignify them as the textual site
of a struggle to reclaim for history an experience buried in the forgotten crevice of our past.’53
Minawalla and Tajmahomed
In the case involving the prosecution of D.P. Minawalla and Tajmahomed, Minawalla was spotted
at 1 a.m. near Capitol Cinema looking cautiously around him and then entering a lorry where
normally a lad called Tajmahomed slept. The complainant who saw Minawalla enter the lorry told
his companions that ‘something peculiar was going to happen’ and, after waiting for 10 minutes,
crept up to the lorry. From the rear, they saw ‘the Parsi on his knees and Tajmahomed on the top
of him: they were committing an unnatural offence. Both had let their lower garments down, and
the Parsi’s face was pressed to the ground.’ Based on what they saw, the complainant accosted both
Minawalla and Tajmahomed and took them to the police station, where Minawalla was charged
with abetting an offence under Section 377 and Tajmahomed with committing the offence under
Section 377.
‘That Despicable Specimen of Humanity’
61
The trial court sentenced Tajmahomed to four months rigorous imprisonment and Minawalla
for abetment to a fine of Rs 100 and imprisonment till the rising of the court. While there was no
appeal from Tajmahomed, Minawalla appealed the decision of the trial court in the High Court
of Sind. In his appeal, he contended that while he was there at the scene of the alleged crime, he
only went into the lorry because he was told that the caretaker was in the van: he wanted to wake
the caretaker as he wanted to get the gate opened to make a telephone call to get a doctor as his
child was ill. On entering the lorry and trying to wake the caretaker, he was violently accosted
by the complainant who stole his watch. Then, he took the complainant to the police station where
the complainant accused him, out of spite, of an offence under Section 377. To buttress his claim
that he was not a sodomite, Minawalla even submitted himself in the course of his defence to the
indignity of a medical examination where the doctor deposed that ‘the anus of a catamite is generally of a funnel shape and the anus of Minawalla did not exhibit this peculiarity’. The judge was
not convinced either by Minawalla’s defence or by the medical evidence produced by Minawalla
and upheld the sentence of the trial court—imprisonment until the rising of the court.
One could read this story as an archive of same-sex desire when it came in conflict with the
law in colonial India. The picture that emerges through this narrative is that Minawalla was a relatively well-off person (he could afford a lawyer to go on appeal) and that his lover, Tajmahomed,
was a working class lad. We do not know if this was their first encounter but can speculate that
since Minawalla seemed to know that someone was in the lorry, it was not. The fact that the
encounter had to take place late at night in a furtive manner in the back of a truck speaks about
the clear social disapprobation attached to sexual relationships between men—relationships that
also happened to be cross-class. The fact that Minawalla was married makes clear that sexual
desire already had a procreative marital context, and that there were strictures against sexual desire
overstepping its socially determined bounds.
The fact that Minawalla felt strongly enough to appeal a decision whose penalty was purely
symbolic (imprisonment until the rising of the court) indicates the extent of social disapprobation
and his keenness to establish his innocence. The effort to construct an alternative story as well as
use medical evidence indicates the importance of the symbolic acknowledgement that Minawalla
was, after all, a good family man untainted by the accusation of being a sodomite. (He went out at
night to get medicine for his child and was shocked at how that was constructed as looking for sex.)
In this archive, the subaltern who does not speak is, of course, Tajmahomed, the working class
lad who did not have the financial resources to file an appeal and who suffered imprisonment for
at least four months.54 Tajmahomed’s lover abandoned him to the law, and took no further interest
in him the moment the law closed in on both of them.
If sexual desire, acted upon only in the anonymity of darkness, is somehow detected and exposed to the harsh light of the public gaze, the only option, if one is to preserve one’s respectable
status (married, middle class), is to deny that such desire ever existed and that such an act was
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ever committed. There is no space in society for desire between two men which has a sexual
component. If self-preservation dictates that one should abandon one’s sexual partner, so be it.
The difficulty of reading the pangs of illicit desire from the often dry judicial record is poignantly
alluded to by Ranajit Guha in his seminal reading of a subaltern affair from the Court records in
‘Chandra’s death’. Guha does a poetic reconstruction from the judical record which speaks of the
murder of Chandra by her family members who kill her by administering a drug which is meant
only to kill the foetus. Through a close reading of the judicial record, Guha builds a picture of a
society which is harshly intolerant of an adulterous relationship outside the social framework of
marriage. Alluding to the patriarchal biases in society, Guha notes that once the woman, Chandra
gets pregnant she is unequivocally abandoned by the man and her family embarks on the ill-fated
abortion which results in Chandra’s death. Guha’s conclusion in the fascinating picture he paints
would be equally apposite in this case, ‘Whatever the truth of the beginning of this affair, there is
nothing in these depositions to illuminate any secrets of the heart. They only throw a lurid light
on its end as the heartless rejection of a [wo]man by the man who got [her] him into trouble’.55
Nowshirwan Irani and Ratansi
Nowshirwan Irani, a young Irani shopkeeper, was charged with having committed an offence
under Section 377 with a young lad, Ratansi, aged around 18. The prosecution story was that
Ratansi visited the hotel of the appellant and had tea there. He then went to the pier to take a
boat, but on finding that he had no money, returned to Masjid Street where he saw Nowshirwan
standing on the road a little distance from the hotel. Nowshirwan asked Ratansi to come to his
house. When Ratansi did, Nowshirwan locked the door and started taking liberties with the
youngster, who resented the overtures and wanted to go away. Nowshirwan removed his own
trousers, loosened those of Ratansi and made the lad to sit on top of his organ. Ratansi got up
from his lap, but in the meantime, Nowshirwan had spent himself, wiped his organ and put on
his pants. The reason this incident came to light was that a police officer, Solomon, along with his
friend, Gulubuddin, saw the incident through the keyhole, marched in and took both Ratansi and
Nowshirwan to the police station.
The judge was not convinced by the prosecution’s argument that Ratansi had been forcibly
subjected to carnal intercourse by Nowshirwan. The judge was convinced that Ratansi was made
to pose as a complainant and, hence, made hopelessly discrepant statements. The judge was not
prepared to rely on the evidence of Solomon and Gulubuddin, whose conduct he found strange.
Furthermore, the medical evidence could neither prove forcible sexual intercourse (the prosecution
story) nor an attempt to commit the act of sodomy. In the opinion of the judge:
…as the appellant had not even if we take the worst view against him gone beyond a certain
stage of lascivious companionship, I do not think he deserves to be convicted for any of the
offences with which he was charged or could have been charged.
‘That Despicable Specimen of Humanity’
63
The story of Nowshirwan and Ratansi is once again a story of sexual desire acting itself out
between two men of different class backgrounds. The limited material present in the appellate
decision gives us a clue that even the judge was convinced about the consensual nature of the relationship. As the judge noted:
Moreover the medical evidence militates against the story of a forcible connexion on the cot,
the appellant who is a fairly hefty young man having intercourse in the manner stated originally.
There is not the slightest symptom of violence on the hind part of the lad.
He concluded: ‘If he was in the house of the accused behind locked doors, I have not the slightest
hesitation in believing that he had gone there voluntarily.’
The story of Nowshirwan and Ratansi was that of two men who desired each other. Nowshirwan,
according to the judicial narrative, made the first move and asked Ratansi why he had stopped
coming to the hotel. Rantansi left the hotel only to come back. When he did, Nowshirwan was
waiting on the road and asked him to come to his house. Ratansi consented. Once again, due to
an overzealous policeman, or a policeman with a grudge, what should have been an intimate act
between two consenting parties in their bedroom became a public scandal.
The prosecution sought to twist a consenting act between two men into a story of Ratansi
having been forced into having sex with Nowshirwan. Ratansi was coerced by the demands of
those around him to pose as a complainant against the very person with whom he had earlier had
a consenting sexual relationship.
The fact that it was a consenting relationship did nothing to exculpate Ratansi from, ironically
enough, becoming a victim of judicial ire. Indeed, the judge reserved a special fury for Ratansi.
In the judge’s words [Ratansi] ‘appears to be a despicable specimen of humanity. On his own
admission he is addicted to the vice of a catamite. The doctor who has examined him is of the
opinion that the lad must have been used frequently for unnatural carnal intercourse.’ In the course
of appreciating the medical evidence, the judge noted, ‘There was not the slightest symptom of
violence on the hind part of the lad.’
Thus, the story of an encounter between two people of the same sex who desired each other
and decided to have sex in the privacy of a home got reduced, in the judicial reading, to an act of
perverse failed sexual connection. The use of terms like ‘animal like’ and ‘despicable’ placed the
sexual act within the framework of moral abhorrence. The judicial framing of the failed sexual
connection takes us very far from the terms within which the encounter took place, that is, conditions of mutual desire, erotic connection and pleasure.
Ratan Mia and Abdul Nur
The facts in this case confirm that both Ratan Mia and Abdul Nur were convicted under
Section 377 and sentenced to imprisonment for six months and a fine of Rs 100. The only other
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fact which the case divulges is that at the time of committing the offence, Abdul Nur was aged
around 15½ years and Ratan Mia around 20 years. The judge upheld the conviction but reduced
the sentence to seven days rigorous imprisonment based on the fact that they were both first-time
offenders and below the age of 21.
The limited facts divulged by the appellate court decision only reveals that in this case the
judge was unable, or unwilling, to construct one of the petitioners as the perpetrator and the other
as the victim, or one as the perpetrator and the other as the abettor. Rather, the judge chose to see
both Ratan Mia and Abdul Nur as equally culpable under the law.
The story of Ratan Mia and Abdul Nur will remain a fragment until the trial court decision is
unearthed. It is a fragment that testifies to the fact that two individuals shared a consenting sexual
relationship with each other and that their relationship ran aground of the law, whereupon both
were subjected to public scrutiny and punishment for the act of consensual sex.
Towards the History of the Queer Subaltern
The three decisions discussed above provide eloquent testimony to not only the existence of
same-sex desire in both colonial and postcolonial India but also to the fact that expressions of samesex desire were punished by the law.56 At its furthermost extreme, as in the case of Nowshirwan
and Ratansi, even a private consensual sexual relationship ran aground of the law. The legitimacy
of the policing of same-sex sexual relationships indicates how a sexual relationship between two
consenting parties in a public space was apt to be viewed and targeted. Same-sex desire, when it
is constructed within a judicial matrix, takes on the form of a ‘crime’. The production of these
same-sex acts within the matrix of law elides the question of what those acts, which so tragically
ran aground of the law, might have meant for the protagonists. What, indeed, were the emotions
and feelings associated with the sexual act? Why was it so important for the three pairs of young
men to engage in these acts? What does it tell us about how those who desired others of the same
sex found each other?
Equally, we will never know the social consequences of the naming and shaming which
resulted from prosecution. How did the family and the wider society react to this prosecution?
What was the social impact of the law beyond its impact in court? How were marital relationships
and kinship ties affected? What was the impact on others within that time period who also desired
those of the same sex?
Was there indeed a wider group of people who desired each other and engaged in sexual acts
and who have remained below the radar of historiography? Were Nowshirwan and Ratansi,
Minawalla and Tajmahomed, and Ratan Mia and Abdul Nur tragic representative of a wider
phenomenon of same-sex-desiring people who remained outside the ken of even subaltern history?
‘That Despicable Specimen of Humanity’
65
If there are no answers to these questions in colonial India, contemporary India, in which the
modern queer rights movement was born might provide some answers or at least raise new
questions.
SECTION 377 IN CONTEMPORARY TIMES: CHALLENGING
CONVENTIONAL UNDERSTANDINGS
It is remarkable that in the entire tortured history of the evolution of judicial doctrine under
Section 377, judges never saw fit to interpret Section 377 using the Indian Constitution as the
touchstone: the right to equality, freedom of expression and the right to live with dignity have not
impacted the evolution of judicial doctrine under Section 377 for the past 56 years. This colonial law
has been completely immune to any influence from the Constitutional law of democratic India.57
Since judicial doctrine has shown little capacity for change, one has to look outside the law
for the raising of new questions. Most of the material which helps us to understand the manifold
impacts of Section 377 has been produced in the postcolonial era, or, to be more particular, the last
two decades of the 20th century. This is obviously connected to the point that these two decades
have seen the increasing rise of a politics which stresses that sexual orientation and gender identity
are, indeed, political concerns.
While this is not the space to chart out the complex reasons accompanying the growth of the
struggle based on sexual orientation and gender identity58 what would be useful to conceptualise
are the forms of knowledge to which have resulted from the struggle based on sexual orientation
and gender identity. The production of these forms of knowledge is really the first of the attempts
to challenge the exclusive power of the law to define the meaning of Section 377 of the IPC.
Perhaps the most important form of knowledge generated through the process of the queer
struggle is the ‘Fact-Finding Report’.59 While fact-finding reports have always been used in the
human rights movement, to document the abuse and violations suffered by various communities,
it is only in the last decade of the 20th century that the focus was on abuses suffered by sexuality
minorities.60 By focusing on narratives of queer people and the violence inflicted by the law, factfinding reports point to the impact of Section 377 outside the frame of a given decided case.
In a cultural context where the issues pertaining to queer people have been, by and large,
invisible, fact-finding reports and other human rights documentation has brought to the fore
the abuses suffered by queer communities under Section 377. This is of vital significance as it
provides a completely different vantage point from which Section 377 can be viewed. The history
of decided case law under Section 377 indicates that there were three cases of the prosecution
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of consenting same-sex couples in India. Without minimising the terror which the sudden and
arbitrary use of the law in the three cases did evoke, it is important to raise the question of what
the wider impacts of Section 377 upon the queer community were.
From the Expressive Function of Section 377 to a Criminology of the Self
Cass Sunstien argues that one needs to also understand the law in terms of ‘making statements as
opposed to controlling behavior directly’.61 If one applies an expressive understanding of law to
the anti-sodomy law, then, the central significance of Sec 377 is not the number of prosecutions
under it but rather the fact that its very existence is an expression of the state’s contempt for those
who fall outside the heterosexual norm.62 Law in this instance functions as way of setting in place
a social norm. In Dan Kahan’s understanding:
The expressive theory gives us the power not only to explain but also to appraise criminal
law.... Sodomy laws, even when unenforced, express contempt for certain classes of citizens.
The injustice of this message supplies a much more urgent reason to oppose the persistence
of these rarely enforced laws than does their supposed impingement on anyone’s liberty to engage
in particular sexual practices.63
The fact that law symbolically expresses contempt for queer people has also been acknowledged by the South African Constitutional Court which, in striking down the anti-sodomy law
in South Africa, made the point that the anti-sodomy law reduced ‘gays and lesbians to the status
of unapprehended felons.64
The Bowers vs Hardwick decision,65 which upheld the validity of the anti-sodomy law, can
be read as ‘a graphic contemporary sign of the vengeance with which the language of the law is
inscribed or ‘written’ on the bodies of gay and lesbian Americans’.66
In the Indian context, the expressive role of Section 377 has been best highlighted in activist
discourse. The most high-profile use of the expressive role of Section 377 was by noted author
Vikram Seth who in an interview noted:
Whereas in India, even if the law is rarely used, the fact that it can be used and is on the books
means that you are by definition a criminal…. What I don’t appreciate is being treated like a
criminal in my own country.67
What is also important to note is that in the construction of a culture that stigmatises homosexuality, other social systems such as medicine, media and family play a mutually reinforcing role.
The stigma of the law continues to play an important role in guiding and moulding the actions of
‘That Despicable Specimen of Humanity’
67
actors from diverse contexts such as medical practitioners, media people and even family and parents
of queer people. To give an example, in an interview with doctors who are ‘treating’ homosexuality,
the standard response was that homosexuality is, in any case, illegal in India. This response can be
multiplied in diverse social settings, thereby illustrating the abiding strength of the way the law
marks the bodies of queer people with the stigma of illegality even in ordinary social discourse.68
Ryan Goodman tries to make a stronger case for the impact of Section 377 by arguing that
the anti-sodomy statute does not merely express a social opinion: it actually constitutes a social
reality for lesbian and gay people. In Goodman’s argument, gays and lesbians internalise the prohibition by law and self-police themselves. He bases his argument on what he calls the notion of
social panoptics, that is, ‘many lesbian and gay individuals believe that sodomy statutes directly
or indirectly proscribe various displays of public affection between same-sex partners. For these
individuals, laws frame and help produce conditions of hostility and create the need for selfmonitoring in public space’.69
There is, thus, another realm of questions which has to do with the impact of Section 377 on
the everyday lives of people who do not necessarily come within the formal framework of criminal law, the vast realm of people with same-sex desires who do not necessarily become the subject of a judicial decision but whose lives are, nonetheless, marked by the fear and anxiety which
Section 377 generates. Consequences can range from mental distress to an internal policing and
a conscious modification of one’s actions. This is the realm of ‘impacts’ of Section 377, which,
though far more difficult to measure, are nonetheless very ‘real’. They function within the mind
and are best described as a ‘criminology of the self ’.70
Beyond the Enforcement Principle: The Harm of Section 377 of the IPC
However, much as the articulation of the symbolic harm of the anti-sodomy law is important,
it is vital to connect the anti-sodomy law to the specific harms it inflicts on queer people.
Goodman argues that the mistake which is often made with respect to the anti-sodomy law is that
we connect it to the question of enforcement, which is really the two end points of the criminal
law—arrest and conviction. The exclusive focus on the end points of criminal law misses out on
the way Section 377 as a social norm results in another series of harms which fall outside the ken
of traditional legal scholarship.
The Social Harm of Section 377
There were two cases of arrest under Section 377 in the city of Lucknow in 2001 and 2006.71
A close attention to the arrests in 2001 will illustrate the wider social impact of Section 377.
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In July 2001, on the basis of a complaint police in the city of Lucknow raided a well-known
public park and arrested over 10 people, including the staff of a HIV/AIDS NGO that was running condom distribution campaigns. They also raided the offices of two NGOs and arrested
four activists under Section 377, along with other charges of criminal conspiracy, abetment and
obscenity. There was no evidence of sodomy.
The effect of Section 377 in terms of the end points of criminal law can be measured in terms
of the arrest of four men, their release on bail after detention for 47 days and their ongoing trial.
In indirect terms, what the arrests did was suspend HIV/AIDS condom distribution as well as send
out a message that men who desire other men, and who frequent a public park, are liable to be
arrested. This, of course, results in fewer people deciding to brave the public parks for fear of police
harassment. Since Section 377 reflects a worldview which is embedded in a wider social context,
it is important to understand what the social impact of arrests might be, apart from understanding
them in terms of arbitrary arrest, prolonged incarceration and lengthy trial.
One gets an insight into what the social impact of arrest under Section 377 from the narratives
of one of the arrested men. He noted:
10 people are kept in jail and all over the city malicious reports are being written about them.
These 10 people are emotionally and physically tortured. Their reputation has gone down forever. What is one of the most important things for anyone? Food, money, empowerment etc.,
isn’t it? Now, it would be next to impossible for these 10 people to go to any place in Lucknow
where they can get a job…. These people are compulsorily out as rapist MSM72 (conspirers of
sodomy) not in the family but in the society and in the city too. That is not very good experience.
Their sister[s] would not be getting married easily. Brothers would be looked down upon. Fathers
and mothers would be commented on negatively.73
What emerged from the above narrative was the clear implication that the case could not be
understood purely in terms of judicial impacts alone: there would be societal impacts which would
be very harmful to those arrested. The narrative of the law is unable to capture this aspect. Thus,
while it is very possible that Minawalla and Tajmahomed suffered a very similar consequence in
pre-independent India, we will never know because the social context for the expression of this
viewpoint did not then exist. However, with the politicisation of concerns around sexuality, a social
context which is receptive to the ‘voice’ of the homosexual has emerged. It is in this context that
the social consequences of arrest under Section 377 become visible.
State Violence and Section 377
As has often been noted in the literature around anti-sodomy laws, what sodomy laws do has to be
understood not merely in terms of enforcement but in terms of the acts which its existence enables.74
‘That Despicable Specimen of Humanity’
69
Thus, in conceptualising the harm that anti-sodomy laws do, one should not exclusively focus on
the three couples who were arrested and subjected to a judicial case, but try and understand the
broader spectrum of harm that the law has enabled.
One has also to understand that often the enforcement of Section 377 functions merely at
the level of the filing a First Information Report (FIR) or the mere threat to file an FIR, both of
which, once again, escape academic scrutiny. Therefore, to understand the role that Section 377
plays in the everyday lives of people, legal analysis needs to encompass law in its different manifestations, right from the judgement to the FIR and to capturing the violations which happen
and leave no legal trace.
The contemporary era provides us some material to assess this type of harm. The PUCL–K
Report, for example, documents human rights violations against sexual minorities in terms of
extortion, illegal detention, abuse and outing. What is common to all four forms of violation is that
they leave no legal trace. These forms of violence, which are often very severe, elude the grasp of the
legal system, making it very difficult to arrive at an understanding of the extent or nature of the
violence perpetrated.
The PUCL–K Report gives us some inkling of the severity of the violence perpetrated by the
police. One narrative of the severe harassment of a transgender sex worker says:
In the police station, she was pushed into a room with her husband. Around 15–20 policemen stripped her in the presence of a senior police officer who was in the police station at that
time.... All the 15–20 policemen stood around her, sexually abusing her by touching her all over
her naked body. They humiliated her further by forcing her to spread her thighs and touching
her sexual organs.75
Similarly, in a case involving arbitrary detention:
On 8 June, 2000, the police arrested Narayana, a self-identified kothi on suspicion of theft.
He was not informed of the charge against him, neither was there any implicating prima facie
evidence. “I kept pleading that I was innocent, but was kept in the lock-up was then taken by a
public bus to Hubli for investigation and shamefully handcuffed to the seat. Even after the real
thief was arrested on the third day and the goods recovered, I was still not released. Subsequently,
I was taken handcuffed to the cruising areas and told to identify the other kothis.… I was finally
released after eight days of verbal abuse and public humiliation and was threatened with serious
consequences if I did not frequently report to the police station.76
The violence inflicted by the police against queer people can be traced back to their perception of queers as people whose lives are anyway illegal under the law. If the law is examined as a
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factor, what is clear about Section 377 is that it propagates the notion that there are people who
practice unnatural sex, which is a punishable offence. Once the act and the person are conflated,
one is then dealing with people who are dirty and unclean in terms of their sexual behaviour.
The behaviour could be described as animal-like. From there, it is a short step to dealing with
homosexuals and hijras as animals. Therein lies the perverse logic of Section 377.
This logic is internalised by law enforcement officials, who feel that there is an official sanction
to dealing with certain groups of people as less than human, as mere animals. In fact, in the first
PUCL–K Report, the Joint Commissioner of Police had noted:
Homosexuality is an offence under Section 377 of the Indian Penal Code and it is the duty
of the police to prevent any kind of offence from happening. If the cop on duty questions or
prevents any form of crime, he is only doing his job. Where is the question of harassment or
atrocity? These are not cases of human rights violation because these groups are not legally
recognised.77
Another police officer simply concluded that it was ‘animal-like behaviour.’78
Privatised Violence by Non-State Actors
What is troubling about violence against the queer community is that it has its roots as much in
civil society as in the state. Even with respect to perpetrators, queer people are not just fearful of
violence by the arms of the state but are equally troubled by the possibility of violence by civil
society vigilante groups.
However, the brutal violence by private actors is still underwritten by state sanction. In Thomas’
words:
The fact that homophobic violence occurs within the context of “private” relations by no
means implies that such violence is without “public” origins or consequence. The apparently
private character of homophobic violence should not blind us to the reality of the state power
that enables and underwrites it. The functional privatization of state power that structures the
triangular relationship between victim, perpetrator, and state does not render the phenomenon
of homophobic violence any less a matter of constitutional concern.79
Thomas views this as privatised violence, which is violence that the state implicitly sanctions
by the continued existence of the anti-sodomy law. The state’s culpability is really in allowing the
continued existence of laws that stigmatise the very existence of some of its citizens. In fact, as
Thomas notes in his analysis of the US context, ‘sodomy laws have an effect outside the traditional
‘That Despicable Specimen of Humanity’
71
understandings of law, because citizens feel empowered by the background of these laws to commit
acts of extreme violence against individuals who are or are presumed to be lesbian or gay’.80
In the Indian context, the private actors referred to as goondas take the law into their own hands
and become vigilantes in favour of preserving a hierarchical and unequal citizenship based on one’s
sexuality. The first PUCL–K Report notes:
During one such raid (by goondas), they threw stones at the hamam and forced the doors
open in order to compel the hijras inside to have sex with them. They spoke about a goonda
who would come to the hamam and force them into degrading behaviour such as using the same
condom first for anal and oral sex. He would also insist on making them eat the pan straight out
of his mouth. If at any point they refused to cooperate, they were warned that their faces would
be slashed by a knife or disfigured by acid; in quite a few cases, they bore marks showing that
their faces had been actually slashed and disfigured. In such cases, the hijras cannot seek help
from the police whose protection favours those with economic and social power’.81
Thus, the effects of the anti-sodomy laws reach beyond mere enforcement and constitute a
cultural background which makes possible a situation where even private citizens feel empowered
to commit illegal acts of criminal intimidation, forcible and illegal entry, sexual harassment and
violence, in the confidence that no action will be taken against them.
Policing the Borders of ‘Normal’ Sexuality: The Role of Section 377
The effects of an anti-sodomy law are thus seen to have ‘locally diffuse and variegated effects’ that
the doctrine of enforcement cannot adequately capture or comprehend. It ranges from creating a
cultural and social background of intolerance to actually empowering the police and even goondas
to commit otherwise illegal acts. The illegality of these acts of brutal violation is overlooked, based
on the perception that those whose rights are being violated are akin to animals. This perception is
further accentuated by the low socio-economic status of hijras and kothis. When poor people are
of little consequence when it comes to respect for their basic human rights, poor people who exhibit
dirty animal-like behaviour are of no consequence at all. There is nobody to speak for them; in
fact, one does society a favour by teaching them a lesson.
Cognisant of the reality that ‘perhaps one of the most serious problems faced by sexual minorities,
particularly those from a lower socio-economic background is the issue of brutal torture and rape
by members of the law enforcement agency’,82 a memorandum was submitted by 39 organisations
working on sexuality issues to the Committee set up to reform the Police Act. The recommendations
made by the organisations implicitly recognise that the key issue is the power, which the state has
to monitor and regulate what it considers deviant sexuality.83
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Arvind Narrain
The issue of violence faced by queer people on a day-to-day basis raises the question of the politics
of Section 377. What are the larger political frameworks within which Section 377 is embedded?
What is the role that Section 377 plays in keeping in place normative sexuality?
As Kenneth Plummer notes in another context:
…gay oppression is not the intended outcome of specific groups who hate gays for various
reasons. Rather it is the unintended price that has to be paid for organizing society in certain
ways. This attention should be directed not to why ‘individuals suffer from homophobia’ but
rather to why we have societies built around strong families, clear gender roles, rigid class and
status structures and a belief system which equates morality with sexuality.84
The redress of homophobic violence is bound up not only with the issue of state power but is
also simultaneously bound up with some of the institutions which are taken for granted by mainstream society. The second PUCL–K Report makes it clear that ‘the scale, nature and extent of
violence against hijra and kothi sex workers…cannot be explained easily’. The Report seeks to show
how ‘the institutions of the family, the law, the medical establishment and the media through their
reiteration of a discourse which is extremely intolerant to gender nonconformity are actually complicit in the pervasive violence which hijras and kothis are subject to’.85
To redress violence against the queer community, one needs to understand the multifaceted
nature of the forces which underpin the brutal violence which is unleashed under the symbolic
figurehead of Section 377. If the campaign against Section 377 is to have a meaningful impact, it
must engage the various sites which go towards regulating queer sexuality.
CONCLUSION
The entry point into the contemporary debates on Section 377 in the Indian context is offered
not so much from the discipline of criminology but from the socio-legal tradition in the law. The
pioneering work around the role of unenforced sodomy laws, and the literature which attempts to
go beyond the thinking of law as merely a case, enables us to rethink the meaning of Section 377.
Indeed what is called for is moving beyond the dominant tradition in legal thought, which is to
view law in terms of decided cases and look at a range of legal impacts which are often left out within
this black letter tradition in law. Neither the colonial era nor much of the history of independent
India has generated activist material mirroring the queer perspective. The production of human
rights material on queer issues in contemporary India has raised new questions with regard to
Section 377, questions which are now a part of contemporary debate.
‘That Despicable Specimen of Humanity’
73
The colonial discourse on Section 377 has enjoyed an undisturbed continuity in the way in
which homosexuality has been conceptualised and dealt with. For over 148 years, the judiciary
has consistently used terms ranging from ‘despicable’, ‘abhorred’ to ‘mental aberration’ to describe
the homosexual. For most of that history, the homosexual ‘voice’ has been absent, with the only
way of really trying to understand the queer standpoint being a ‘reading’ into judicial decisions
of queer desire and feelings.
It should also be noted that while there are records to understand the nature of the judicial
decision, there was no material to make sense of what the law meant, in an everyday sense, till the
last two decades of the previous century. It is only the rise of the struggle based on sexual orientation and gender identity that has altered the social and political context. This has made possible the generation of new material, which has provided fresh insights into the everyday impact
of Section 377.
Apart from the question of understanding the impact of Section 377, the key question to be
answered is: Why, well after a half-century of independence, does Section 377 continue to hold
sway? The fact that this system of ‘bio-power’ which is based on a need to ‘subjugate bodies and
control populations’ is still in place in post-independence India, and the fact that it remains
impervious to any form of social change, require us to revisit the question about the social function served by the anti-sodomy law. In the changed context of an independent India, what is the
notion of India that the anti-sodomy law seeks to uphold? What role does it play in keeping in
place the ‘normality’ of everyday life and the structure of family and community? Is the continued
stigmatisation of homosexuality as abnormal really underpinned by the idea of heterosexuality as
normal? The future relevance of criminology will depend on the seriousness of the engagement
with these questions.
NOTES & REFERENCES
1. Siedman, Steven (ed.). 1997. Queer Theory/Sociology. Cambridge, UK: Blackwell. cf. Groombridge, Nic. 1999.
‘Perverse Criminologies: The Closet of Doctor Lombrosio’, Social and Legal Studies, 8(4): 533.
2. Smart, Carol. 1995. Law, Crime and Sexuality, p. 33. London: Sage Publications.
3. Tomsen, Stephen. ‘Was Lombrosio a Queer?’ cf. Groombridge. 1999.
4. Liazos, Alexander. 1972. ‘The Poverty of the Sociology of Deviance: Nuts, Sluts and Perverts’, Social Problems, 20(1):
103–20.
5. Ibid.
6. See the changes in South Africa, the Netherlands, some states in the USA, France, Canada and a number of other
jurisdictions which recognise some forms of same-sex partnership/marriage.
7. Groombridge. 1999. op. cit., p. 531.
8. Ibid., p. 538.
74
Arvind Narrain
9. Tomsen, Stephen. 2006. ‘Homophobic Violence, Cultural Essentialism and Shifting Sexual Identities’, Social and
Legal Studies, 15(3): 389.
10. Garland, David. 2001. The Culture of Control cf. Moran, Leslie. 2001. ‘Affairs of the Heart: Hate Crime and the
Politics of Crime Control’, Law and Critique 12: 336.
11. Ibid., p. 341.
12. Ibid., p. 343.
13. Groombridge. 1999. op. cit., p. 542.
14. Moran, Leslie. 1996. The Homosexual(ity) of Law. London: Routledge.
15. Leslie, Christopher. 2000. ‘Creating Criminals: The Injuries Inflicted by “Unenforced” Sodomy Laws’, 35 Harvard
Civil Rights—Civil Liberties Law Review, p. 103. Sunstien, Cass. 1996. ‘On the Expressive Function of Law’, 144
University of Pennsylvania Law Review 2021. Thomas, Kendall. 1992. ‘Beyond the Privacy Principle’, 92 Columbia
Law Review 1431.
16. Goodman, Ryan. 2001. ‘Beyond the Enforcement Principle: Sodomy Laws, Social Norms and Social Panoptics’,
89 California Law Review 643.
17. See People’s Union for Civil Liberties–Karnataka. 2003. Human Rights Violations Against the Transgender Community:
A Case Study of Hijras and Kothis in Bangalore. Available online at http://ai.eecs.umich.edu/people/conway/TS/PUCL/
PUCL%20Report.html. Also see the submissions to the Committee to Reform the Police Act titled, ‘Sexual Minorities
and the Police in India: Towards a Regime of Accountability’, available online at www.altlawforum.org.
18. None of the recommendations made to the Committee to Reform the Police Act was accepted, indicating a
fundamental inability to take seriously the issues affecting queer people. The said memorandum was submitted in
2006 by 39 organisations who felt that the treatment of sexual minorities by the police needed to be considered
by the Committee. The principle which underlies the proposed recommendations is that the law and policing
practices in contemporary India should reflect contemporary realities. Of course prime among the contemporary
realities is that India is a democratic society and the police force needs to reflect this reality. A second aspect of the
democratic society which India is, is that there are a diverse range of people who are citizens of India. This diversity
includes those who are not a part of the heterosexual norm such as gays, lesbians, hijras, bisexuals, and so on. Since
these groups form a part of our diverse society, it is very important that law does not unfairly target sexual minorities,
and also make a pro-active effort to protect sexual minorities in the event of discrimination.
19. The identity queer is ‘meant to encompass a multiplicity of desires and identities, each and all of which question
the naturalness, the rightness, and the inevitability of heterosexuality. Historically used as a derogatory term to
describe homosexual people in the West, and home to the rather unflattering meanings of “odd” or “strange” in
the English language, “queer” might seem a perplexing choice of name for a community or movement. Yet it is its
very infamy that makes the term attractive for so many. By proudly calling themselves queer, homosexual people
not only re-appropriate a word historically used as part of a language of oppression, they also reject the power of
the oppressor to judge them in the first place.’ See Narrain, Arvind and Gautam Bhan (eds). 2005. Because I Have
a Voice, p. 3. Delhi: Yoda Press.
20. Foucault, Michel. 1980. The History of Sexuality, Vol. 1, pp. 95–96. New York: Vintage Books.
21. It has been argued that the regulatory role of the institutions of both family and marriage needs close study in the
way that it polices queer desire and expression. The PUCL–K Report, in the context of narratives of extreme violence
inflicted by family members against those who identity as hijra and kothi, notes that ‘what emerges strongly from
the above narratives is that the family as a social institution polices gender non-conformity in terms of attitudes,
identity and behavior, and thereby reinforces the heterosexist regime. The narratives indicate that instead of protecting
the child from the violence inflicted by wider society the family mirrors and in fact provides an arena to act out the
intolerance of the wider society. Those who violate the existing social codes which prescribe how a man is to behave
are subject to daily humiliation, beatings and expulsion from the family.’ PUCL–K. 2003. Human Rights Violations
Against the Transgender Community, p. 56.
‘That Despicable Specimen of Humanity’
75
22. The medical establishment regulates homosexuality through the diagnostic category of ego dystonic homosexuality. Those who are diagnosed as ego dystonic homosexuals are medically treated for the same. See Narrain, Arvind
and Vinay Chandran. 2003. ‘It’s Not My Job To Tell You, It’s Okay To Be Gay: Medicalisation of Homosexuality’,
A Research Report, New Delhi: Sarai, cf. Narrain and Bhan (eds). 2005, op. cit., pp. 49–69.
23. Lacey, Nicola, Celia Wells and Dirk Meure. 1990. Reconstructing Criminal Law. London: Butterworths.
24. See V.N., Deepa. Queering Kerala, cf. Narrain and Bhan (eds). 2005, op. cit., pp. 175–96.
25. Lacey et al. 1990, op. cit.
26. ‘Report on the Indian Penal Code’, cf. Dhagamwar, Vasudha. 1992. Law, Power and Justice. New Delhi: Sage
Publications, p. 117. Lord Macaulay’s fear that the very existence of the text of the provision would give rise to
unnecessary discussion around the revolting subject seems to be justified at the end of the 20th century as Section 377,
the successor to Clause 361, has given rise to enormous discussion around the issue of non-normative sexuality.
27. Even while we study the decisions, what needs to be kept in mind is that what finally become available for scrutiny
are only the reported decisions of the Supreme Court and the High Courts. For example, the vital decision of the
Delhi High Court dismissing the petition challenging the Constitutional validity of Section 377 on the narrow
ground of locus standi was not reported. (Order Dated 2 September 2004 of the Delhi High Court in Writ Petition
No. 7455/2001.) Apart from this, there is also a vast body of Sessions Courts decisions which generally escape
academic scrutiny.
28. See Gupta, Alok. ‘The History and Trends in the Application of the Anti-Sodomy Law in the Indian Courts’,
The Lawyers Collective, 16(7): 9.
29. All India Reporter (AIR) 1933, Sind, p. 87.
30. (1982) 3 Supreme Court Cases 9.
31. AIR 2000 SC 1669.
32. AIR 1947 Allahabad 97.
33. (1992) Criminal Law Journal 488.
34. Government vs Bapoji Bhatt, 1884, Mysore Law Report. 280.
35. Khanu vs Emperor, AIR 1925 Sind 286.
36. http://www.planetout.com/news/history/archive/labouchere.html.
37. Eskridge, William. 1999. Gay Law, p. 25. Harvard: Harvard University Press.
38. AIR 1968 Gujarat 252.
39. (1992) Criminal Law Journal 1352.
40. (1969) Criminal Law Journal 818.
41. Foucault, Michel. 1980. The History of Sexuality, Vol. 1, p. 43. New York: Vintage Books.
42. Queen Empress vs Khairati, Indian Law Reporter 6 Allahabad 205.
43. D.P. Minawalla vs Emperor, AIR 1935, Sind, 78.
44. Reddy, Narayan. 2003. Essentials of Forensic Medicine and Toxicology, p. 334. Hyderabad: K. Suguna Devi.
45. Ibid.
46. In Foucault’s terms, ‘The idea of dangerousness meant that the individual must be considered by society at the level
of his potentiality and not at the level of his actions; not at the level of the actual violations of an actual law, but at
the level of the behavioral potentialities they represented.’ Foucault, Michel. 1994. Power, p. 5. London: Penguin
Books.
47. See PUCL–K. 2003. Human Rights Violations Against the Transgender Community, Bangalore, for an analysis of the
Criminal Tribes Act.
48. Gupta, Alok. ‘Section 377 and the Dignity of Indian Homosexuals’, Economic and Political Weekly, XLI(46): 4815.
49. Foucault 1994, op. cit., p. 160.
50. AIR 1935 Sind 78.
51. AIR 1934 Sind 206.
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Arvind Narrain
52. (1988) Criminal Law Journal 980.
53. Guha, Ranajit. (ed.). 1987. Subaltern Studies V, p. 142. Delhi: Oxford University Press.
54. We do not know if Tajmahomed got bail: if he did not, he would have been imprisoned for the entire period of
the trial.
55. Guha 1987, op. cit., p. 156.
56. In all three decisions cited, we are relying on the judgement of the appellate court. However, even if we did have
access to the entire trial court judgement, there would be aspects to which the case might never have alluded.
57. The first attempt to challenge the judicial frame of reference has been through the Naz Foundation vs Union of
India, CRP No 7455/2001, which challenges the Constitutionality of Section 377 of the IPC. For a discussion
of the same, see Narrain, Arvind. 2004. Queer: Despised Sexualities, Law and Social Change. Bangalore: Books
for Change.
58. See Narrain and Bhan (eds). 2005, op. cit.
59. The history of the fact-finding report in India as a tool of human rights advocacy can be traced back to Mahatma
Gandhi, who authored the first one on the Rowlatt Act.
60. See the fact-finding reports: Aids Bedhbhav Virodhi Andolan. 1991. Less than Gay: A Citizen’s Report on the
Status of Homosexuality in India, New Delhi, 1991; Aids Bedhbhav Virodhi Andolan. 1999. For People Like Us,
New Delhi, 1999; PUCL-K. 2001. Human Rights Violations Against Sexuality Minorities, 2001 and PUCL-K. 2003.
Human Rights Violations Against the Transgender Community, 2003.
61. Sunstien, Cass. ‘On the Expressive Function of Law’, 144 University of Pennsylvania Law Review 2021.
62. See Gupta, Alok. ‘Section 377 and the Dignity of Indian Homosexuals’, Economic and Political Weekly, XLI(46):
4815, for the argument that Sec 377 targets not just acts but the very identity of the homosexual.
63. Kahan, Dan M. 1999. ‘The Secret Ambition of Deterrence’, 113 Harvard Law Review 414, 421.
64. National Coalition for Gay and Lesbian Equality vs Ministry of Justice, 998 (12) BCLR 1517 (CC) 107. Available
online at http://www.saflii.org/za/cases/ZACC/1999/17.html.
65. 478 US 186(1986). This decision was overruled in Lawrence vs Texas, 123 S. Ct. 2472 (2003). For an insightful
analysis of the kind of social change which the Lawrence Court simply endorsed see, Cass Sunstein, ‘What did
Lawrence hold? Of Autonomy, Desuetude, Sexuality and Marriage’. Available online at http://www.law.uchicago.
edu/Lawecon/index.html.
66. Thomas, Kendall. 1992.’Beyond the Privacy Principle’, 92 Columbia Law Review 1431.
67. Seth, Vikram. 2006. ‘It took me a long time to come to terms with myself, those were painful years’, Outlook,
2 October 2006.
68. See Narain, Arvind and Vinay Chandran. 2003. ‘It’s Not My Job To Tell You, Its Okay To Be Gay’, cf. Narrain and
Bhan (eds). 2005, op. cit.
69. Goodman, Ryan. 2001. ‘Beyond the Enforcement Principle: Sodomy Laws, Social Norms and Social Panoptics’,
89 California Law Review 686.
70. Stanko, Elizabeth. ‘Homophobic Violence and the Self “At Risk”: Interrogating the Boundaries’, Social and Legal
Studies, 6(4): 513–32.
71. See the Preliminary report of the fact-finding team on the arrest of four men in Lucknow under IPC 377,
http://www.yawningbread.org/apdx_2006/imp-249.htm.
72. MSM is a public health term standing for men who have sex with men.
73. http://groups.yahoo.com/group/khush-list/.
74. Goodman, Ryan. 2001. ‘Beyond the Enforcement Principle: Sodomy Laws, Social Norms and Social Panoptics’,
89 California Law Review 643.
75. People’s Union for Civil Liberties–Karnataka. 2003. Human Rights Violations Against the Transgender Community:
A Case Study of Hijras and Kothis in Bangalore. Bangalore, p. 29.
76. PUCL–K. 2000. Human Rights Violations Against Sexuality Minorities in India: A Case Study of Bangalore. Bangalore,
p. 19. Available online at www.pucl.org.
‘That Despicable Specimen of Humanity’
77
77.
78.
79.
80.
81.
82.
PUCL–K. 2001. Human Rights Violations Against Sexuality Minorities in India, p. 22.
Ibid.
Thomas 1992, op. cit., p. 1431.
Ibid., p. 1461.
PUCL–K. 2001. Human Rights Violations Against Sexuality Minorities, p. 50.
See the Memorandum titled ‘Sexual Minorities and the Police in India: Towards a Regime of Accountability’
submitted to the Committee headed by Soli Sorabjee.
83. Some of the key recommendations are to do with the structuring of police discretion and ensuring police
accountability.
1. Structural changes:
(a) Setting up of a State Security Commission. At least one person who is a member of the Commission to
have experience on gender and sexuality issues
(b) Setting up a mechanism for inquiry against the police
(c) Setting up and ensuring the functioning of Human Rights Cell in each district
2. Structuring police discretion and ensuring police accountability:
(a)
(b)
(c)
(d)
NHRC guidelines on arrest to be followed
Supreme Court judgements cited above to be incorporated into guidelines
Model Autopsy Report recommended by the NHRC to be adopted
Human Rights violations against sexual minorities to be construed as professional misconduct
3. Measures specific to sexual minorities:
(a)
(b)
(c)
(d)
Training to all police officers on the ambit of Section 377 and its restricted nature
Training on the concerns and issues of sexual minorities
Training on identifying and preventing ‘hate crimes against sexual minorities’
Training to police officers to separate law from morality and to strictly follow the law
4. Measures to ensure diversity with the force:
(a) The police force must represent the diverse range of Indian society and include within it gays, lesbians,
hijras and bisexuals.
84. Plummer, Kenneth. ‘Homosexual categories: Some research problems in the labelling perspective of homosexuality’,
cf. Nardi, Peter et al. 1998. Social Perspectives in Lesbian and Gay Studies, p. 91. London: Routledge.
85. People’s Union for Civil Liberties—Karnataka. 2003. Human Rights Violations Against the Transgender Community,
p. 53.
4
Sexual Assault and the Law
Kalpana Kannabiran
INTRODUCTION
The issue of sexual assault has confounded Indian courts over the past three-and-a-half decades.
While the problem was, to begin with, in the way in which the offence of rape was constructed
in the Penal Code, the more difficult problem had to do with the place of rape and, the woman’s
sexualised body in the social imaginary in India. The early experiences of Mathura (a working-class
Adivasi girl) and Rameeza Bee (a working-class Muslim girl) marked the beginnings of feminist engagement with criminal law, particularly the issue of custodial violence and custodial rape.
A re-examination of these two cases also points to the ways in which sexual integrity is tied, even
within the domain of criminal justice, to the hierarchies of community in a plural society. The
imbrication of women’s bodies in discourses of honour, community and ‘Indian womanhood’ is
a very complex reality that must be unpacked in order to restore to women, across class, caste, community and region, a sense of integrity and justice.1
Through nine sections, this chapter will attempt to map this complex journey of sexual assault
against women through the corridors of the Criminal Justice System (CJS). The section titled ‘The
Trouble with Consent’, which follows this Introduction, focuses on the early history of rape in
colonial India; the section on ‘A Different Court: Rameeza Bee and the Muktadar Commission’
looks at the Muktadar Commission, which enquired into the rape of Rameeza Bee in Hyderabad
in 1978, underscoring the experience of a survivor of custodial violence in a sympathetic court;
the section on ‘The Tongues of Justice’ examines judicial discourse on rape between 1978 and 1995;
the section on ‘Bhanwari Devi: Violence and Restoration’ attempts an understanding of the ways
in which Bhanwari Devi, raped by men of dominant castes in rural Rajasthan, negotiated her way
through the justice system; the section on ‘Gendering Justice’ follows the trial court proceedings
against Premananda, a ‘godman’, and his associates for keeping in custody and raping minor girls
Sexual Assault and the Law
79
over several years; the section on ‘Rape is a Violation of the Right to Life’ traces the shifts in the
framing of the law which located rape within the fundamental right to life in 1995; the section
on ‘Collective Violence and Sexual Assault’ examines the place of sexual assault in the larger field
of collective violence and the (im)possibility of legal redress; the ‘Conclusion’ attempts to draw
together the critical issues that have figured in legal discourse on rape and sexual assault.
The chapter aims to examine the pervasiveness of sexual assault in India. In touching the
signposts, the issue is plotted along two axes—chronology and contextual plurality. Looking
at the latter first, while ‘community spaces’ have historically had a troubled relationship with
‘courts’, a consideration of community justice systems becomes indispensable to a consideration
of justice—especially for women—if only because the rhetoric of the community courts has
been echoed in the courts of trial and appellate courts over almost six decades since 1950. From
the experiences of women during Partition, through the assault of women in Northeast India by
the armed forces, to the rapes in custody of Rameeza Bee and Mathura, the experience of Bhanwari
and the mass assaults on Muslim women in Gujarat in 2002, it is clear that the ‘patriarchal
delegation’,2 moves back and forth between family, community and public institutions. This
results in the constantly reiterated reading of the woman’s body in predetermined ways that are
deeply ideological—readings that lock women into castes, communities, tribes and classes, so that
the woman never stands as a discrete individual who has been assaulted. She is always—to begin
with—a repository of patriarchal values, one that has been (must be) brutally violated.
This delegation is embodied in the apparently disinterested field of medical jurisprudence
where the formulation of the problem of rape and the ‘scientific’ devices that form the basis of laws
of evidence to try this offence—the two finger test, for instance—is but another demonstration of
the patriarchal encoding of the female body. The medical doctor re-presents proprietary readings
of the woman’s body which are authoritative because they come from the realm of science.3 Yet we
know that biology has historically been used in the service of ideologies that justify dominance by
relegating the social to the realm of the natural, which is then reined in by the ‘science’ of biology.4
The space of the court in which the rape trial is located exists in relation to the larger, more
nebulous yet determinate ‘community’ spaces for claims with respect to sexual access and violation,
all legitimate, whether lawful or not. With respect to sexual violence, the alliance between courts
and communities is articulated far more coherently and completely than other realms of life, with
the courts tending to reinforce or mirror community regulation of sexual control, through strategies
of withdrawal and/or equivocation. There is a discursive kinship between the two, which is also a
structural kinship, and this mutual interdependence in the constitution of the CJS stands in stark
contradiction to the mind/body dualism of the law, notably criminal law.
The structure of panchayats, policing, courts, prison administration and forensic science in
India quite literally excludes women—there are hardly any women in community/caste panchayats;
80
Kalpana Kannabiran
the representation of women among the judges of the Supreme Court is zero; less than 4 per cent of
the elite police force consists of women; forensic science is no exception to this norm; and women
officers figure only in prison facilities for women, if at all.5 The discursive formations that emerge
from this structure are, not unexpectedly, at best exclude women; they are most often ‘pornographic
vignettes’, to use Carol Smart’s startlingly appropriate phrase.6
In this context, there have been concerted struggles to reconstitute ‘courts’. Through a deliberative process, India has over the past 30 years witnessed the opening out of the trial beyond the
narrow confines of the courtroom. The Muktadar Commission of Enquiry that investigated
the custodial rape of Rameeza Bee and the torture and death in custody of Ahmed Hussain in
Andhra Pradesh in 1979 marks the early history of this struggle for justice; and the Citizen’s Tribunal
that investigated the violence against Muslim people in Gujarat 23 years later is the most recent
milestone. Bracketed between these two, the courts of law have tried, convicted and acquitted
persons accused of sexual assault; and statutory commissions such as the National Human Rights
Commission (NHRC) and the National Commission for Women (NCW) have intervened in
specific episodes, straddling, as it were, the deliberative spaces of citizens’ tribunals and the formal
domains of courts.
THE TROUBLE WITH CONSENT
Macaulay’s draft of the IPC, in clauses 359 and 360 spoke of the offence of rape:
Clause 359: A man is said to commit rape who, except in the cases hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the
five following descriptions:
First:
Against her will.
Second:
Without her consent while she is insensible.
Third:
With her consent when her consent has been obtained by putting her in fear of
death or of hurt.
Fourth:
With her consent when the man knows her consent is given because she believes
that he is a different man to whom she is, or believes herself to be married.
Fifth:
With or without her own consent when she is under nine years of age.
Exception: Sexual intercourse by a man with his wife is in no case rape.7
Therefore, in its earliest colonial formulations, the offence of rape referred to heterosexual
non-consensual intercourse of a man and a woman who was not his wife. In this formulation,
Sexual Assault and the Law
81
the distinction between sexual assault and sexual intercourse depended on the subjective position
of the woman and her kinship with the man—if she was a wife, even an infant wife, the man had
the prerogative to sexual access; he did not have this prerogative even if she had consented but
she was not his wife and below nine years of age, with the consent obtained under deception or
threat of hurt; he did not have the right to sexual access if she was more than nine years old, not
his wife and did not consent. The notion of hurt, harm or violence in the claim to, or enactment
of, sexual access was absent from this formulation. This conception of sexual offence absorbed
existing ideologies of Brahminical patriarchy which was evident, for instance, in the distinction that colonial officers made between the sexual maturity (‘ripening’) of English women and
Oriental women, with laws in England penalising sexual relations with women under the age of 12,
irrespective of consent, but arguing that this age bar should drop to 10—and in the Presidency
towns to eight—because ‘…in India…females come to maturity so early, [that] this doctrine must
be received with considerable caution, and must always be a point to be determined by the discretion of the Court, or by a jury.’8
Notwithstanding this equivocation in colonial law, Radhika Singha points out a significant
difference that colonial law introduced as early as 1812 between marital infidelity as a ‘private
wrong’ (adultery), on the one hand, and sexual relations between unmarried persons, on the other,
in which rape was a public offence and fornication was bypassed by the law.9 Rape, being defined
as a ‘heinous crime’, the criteria of which was penetration, and its consequence the pollution of
vessels of family and community honour, the gradation of punishment for rape was derived not
from the severity of assault but from the logic of social hierarchy on which codes of honour were
based. The Law Commissioners defended Macaulay’s draft penal code of 1837, which allowed the
judge to choose between two to 14 years imprisonment to punish rape:
On the one hand…the chaste high caste female who would sacrifice her life to her honour,
contaminated by the forcible embrace of a man of low caste, say a Chandala or a Pariah. On
the other hand…the woman without character…who is wont to be easy of access. In the latter
case…the offender ought to be punished; but surely the injury is infinitely less in this instance
than in the former.10 [Emphasis added]
This was in response to the criticism of the draft by J.F. Thomas, a judge in the Madras Presidency,
who wrote: ‘If the act of forcible violation is fully established, I can perceive no ground, even if
the woman is without character, for lessening the security of person.’
But, then, Judge Thomas went on to argue for an increased stringency of punishment, because
women of caste would find death preferable to their violation by low caste men, a viewpoint
reiterated by the Law Commissioners.
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In effect, therefore, the distinction colonial law set out to make between private wrongs and public
offences was dismantled even as it was articulated. According to Singha, in the early 1800s:
It was administrative commonsense, the norm of knowing the people, that the honour of men,
particularly among the respectable orders in India depended upon the chaste reputation of
their women. Stories about the ‘defiled’ woman herself demanding to be killed tended to be
accepted as confirmatory ‘of the anxiety which the natives of this Country feel, on points where
female chastity is concerned, to preserve unsullied the reputation of their family.’11
Clause 359 of the Draft Code was retained as Section 375 of the IPC in 1860, with one
amendment. The Exception read: ‘Sexual intercourse of a man with his own wife, the wife not
being under ten years of age, is not rape.’
Through the 1870s, there were sporadic reports about the battery and deaths of resistant
child-wives by irate adult husbands who got let off with light sentences, if they were incarcerated
at all. In 1890, Phulmonee, an 11-year-old girl who had not yet come of age, died after her
35-year-old husband raped her. She died after 13 hours of profuse bleeding. ‘I saw my daughter
lying on the cot, weltering in blood…,’ said Radhamonee, Phulmonee’s mother.12
Although the women of Phulmonee’s family testified in court that since caste codes did not
permit premenstrual cohabitation, the couple had been kept apart till, on the night of her death,
her husband had stolen into Phulmonee’s room and forced himself on her, the English judge,
Wilson, accepted the husband’s version that as they had cohabited several times earlier, intercourse
was not the cause of death. The charge of rape did not arise because she was clearly over 10 years
of age. In Judge Wilson’s words:
I think it is my duty to say that I think there exists hardly such solid and satisfactory ground
as would make it safe to say that this man must have had knowledge that he was likely to cause
the death of the girl…. You will, of course, in these, as in all matters, give the benefit of any
doubt in favour of the prisoner.
The weight of concern is very blatantly on the exoneration of the man rather than on the fate
of the woman. The law itself was shaped so as to preserve custom as well as the male right to the
enjoyment of an infantile female body.13
The jury consisted of six Hindus, two Europeans and one Mohamedan. The husband was
found guilty of causing death inadvertently, by a rash and negligent act, and was sentenced to a
year’s rigorous imprisonment.14
After Phulmonee’s death, 44 women doctors, as part of the reformist movement to raise the
age of consent, brought out lists of child-wives who had died or suffered grievous hurt consequent
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83
on rape. Several girls who had been raped by their husbands and mothers of girls testified in court
despite the taboos against women appearing in public:
‘I have not reached puberty…. My husband violated me against my will…. When I cried out,
he kicked me in the abdomen…. He rebukes me and beats me. I cannot live with him.’
The magistrate discharged the elderly husband of this girl and she was restored to him, like
with so many others before and after him.15
A century later, in 1971, the Law Commission of India, in its 42nd report, recommended changes
in Section 375.16 In the intervening years, in the Exception to Section 375, the minimum age below
which intercourse would constitute statutory rape had been raised to 15 years. The issue of marital
rape was critical to these discussions. The report recommended the removal of marital rape from
Section 375, and the inclusion of an explanation to the effect that a separated wife would not be
deemed to be a wife under the section on rape. It recommended the gradation of the offence of
rape by a husband of his wife under a new section: Punishments severe for the rape of child-wives
below the age of 12 and minimal where the wife was between 12 and 15 years old.
The most significant contribution of the 42nd report of the Law Commission was in the recognition and definition of ‘custodial rape’.17 Although the recommendations did not immediately
result in amendments to the law, they anticipated the tumultuous debates around the issue of
custodial rape that followed later in the decade. The issue of marital rape had to wait longer. In the
Lok Sabha debates in 1983, the issue of marital rape and child marriage was discussed at length, with
most members resisting the criminalisation of marital rape, even if it was child marital rape.18
A DIFFERENT COURT: RAMEEZA BEE AND THE
MUKTADAR COMMISSION
Rameeza Bee was 18 years old in March 1978 when she was gang-raped by four policemen and
her husband beaten to death.19 There was public protest over the rape of Rameeza and the death of
her husband Ahmed Hussain. The police treated the angry crowd as an unlawful assembly and
opened fire indiscriminately, which resulted in further loss of life. After the firing, a Commission
of Enquiry was set up with a sitting judge of the AP High Court being appointed to constitute
the One-Man Commission. The terms of reference of the Commission were confined to the assault
on Ahmed Hussain, the causes of his death and the rape of Rameeza Bee. The government went
out of its way to shield the accused policemen. The forensic experts had been co-opted and the
Special Branch had intervened in the preparation of the postmortem report of Ahmed Hussain,
which said that he died of cardiac arrest. Justice Muktadar found the policemen guilty of the
offences of rape, assault and murder with a common intention to do all this. He recommended
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that they be prosecuted for these offences. An investigation was conducted and a charge sheet
filed. The accused then moved the Supreme Court on the plea that since a sitting judge of the
AP High Court had constituted the one-man Commission of Enquiry, the trial court was likely to
be biased in his favour. The matter was transferred to the court of the District Judge of Raichur,
Karnataka, who acquitted the policemen.
The State concentrated its efforts during the proceedings of the Commission in trying to effect
a virtual erasure of Rameeza’s rape. Despite a very strong support from a range of political parties
and civil liberties groups and representation by eminent civil rights lawyers like K.G. Kannabiran,
the proceedings aggravated the trauma of her rape and loss. The testimonies against Rameeza Bee
in the Commission and the defence of the accused policemen centred on the question of her involvement in prostitution; the legality of her marriage to the deceased Ahmed Hussain; and whether
or not Ahmed Hussain had been working as a pimp. The strategy of the defence was to foreground
her character, her dishonesty and her ‘immoral vocation’. As a result, Rameeza, a survivor of brutal
sexual assault, found herself constantly repeating that she did not know the procession of men
who were being paraded before her:
I knew some people of my village. I do not know who Jayaramulu is. I do not know who
Murtuza is. I do not know dhobi Marereddi. It is incorrect to say that I have immoral connections with Jayaramulu and Murtuza. It is incorrect to say that I stole sarees from the house
of dhobi Marereddi. I never used to go in the bus to different villages for agricultural labour.
I did not see Atmakur village. I did not even go to Kurnool. I do not know Kurnool Balamma.
It is incorrect to say that a bus conductor named Ahmed Hussain took me to the house of one
Balamma in Kurnool in Minchi Street and kept me there. I do not know that Balamma carries
on the profession of procuring girls.20
Queries about the rape were interspersed with queries about knowledge of the validity of cultural
practice, with accusations of theft, with suggestions of a wider community of belonging—to the
‘immoral’ community, and with accusations of mobility associated with that immorality: the bus
that took her to a procurer, the rickshaw that was her vehicle for soliciting, and so on. The discursive, and indeed political, strategy achieved a disruption in the statement of the assault against
Rameeza and Ahmed Hussain, with the constant back and forth movement blurring the boundaries
between Rameeza’s alleged immorality and the fact of her rape.
The second part of this strategy was to establish that the ‘immorality’ was not an individual
attribute that Rameeza alone had demonstrated. The consolidation of the ‘immoral community’
happened through the testimonies of Qutubuddin, who had been contacted by the Home Minister;
of Anwar Hussain, a 32-year-old rickshaw puller and ‘former pimp’; of his 18-year-old wife
Ghousia, a former prostitute; of Razia, a 25-year-old ‘prostitute’, wife of Haneef Ali; and through
Sexual Assault and the Law
85
the personal identification of Rameeza Bee, during the Commission’s proceedings, by ‘former
clients’. While Anwar Hussain stopped pimping 15 days before he was required to depose before
the Commission, Ghousia stated that she had given up prostitution a month and a half prior, that is,
around the time that Rameeza was raped.
The people they were testifying about, however, continued to reside in the community. According to all three depositions, Malan Bee, Rameeza’s mother-in-law, regularly sent girls to Hyderabad
from Nandikotkur, often through Ahmed Hussain, Rameeza’s husband who had died after being
tortured in custody. Anwar Hussain had been in this trade for 14 years, since he was 16 years old.
He knew Imam Saheb, Malan Bee’s brother, and his first wife, Qasim Bee; Shah Peer and Saheb,
Malan Bee’s other sons; and Ahmed Hussain. Ghousia, Malan Bee’s ‘daughter’, was Anwar Hussain’s
wife. All these people, according to Anwar Hussain, were in the business of prostitution.
How was this ‘business’ organised? In the course of his work, Anwar regularly dealt with the
police. He often paid mamool (bribe) and got chargesheeted only twice in 14 years—once during
the Emergency, when all pimps were arrested and chargesheeted. According to him, the police
chargesheet pimps when they refuse to pay mamool. His net income was around Rs 20 per client.
He also did ‘pairavi’(sought favour) for women who were chargesheeted, and earned some money
through this. These cases usually ended in confessions, and rarely went to court. Anwar Hussain
asserted that he had come to depose before the Commission of his own accord after being served
the summons by the head constable of Nallakunta police station. Rameeza Bee, according to
Anwar Hussain’s testimony, was brought to him first by Imam Saheb and Nabi Saheb. He engaged her twice, and gave the Rs 150 that he earned to Nabi Saheb. However, after the arrival of
Ahmed Hussain on the scene, he no longer engaged Rameeza.21
Ghousia’s testimony, in contrast to that of Anwar Hussain, was marked by an equivocation
and ambivalence about her own position and work. According to her statement, Ghousia married
Anwar Hussain, a pimp, six months prior to her appearance before the Commission. A native
of Nandikotkur, she was brought, she said, to Hyderabad along with Razia, also a prostitute, by
Malan Bee. Although she did not know Rameeza Bee personally, she had seen Anwar Hussain
engaging her twice (although a little later in her cross-examination, she said that she did not
know whether Rameeza had had any transactions with Anwar in the past year). She also knew
Lakshmi, Imam Saheb’s stepdaughter, also a prostitute. After speaking about the fact that she was
chargesheeted, and that Anwar had sent her to clients over the past few months, she went on to
say, ‘Anwar told me to say…that I work as a prostitute through Anwar…. I have never slept with a
man for money…I do not like the profession of a prostitute.’22
Razia’s testimony was very similar to Ghousia’s. There were notes in parenthesis in her testimony that stated that from her demeanour it was clear that the witness had been tutored, and the
story was much the same. Both Ghousia and Razia were asked to depose before the Commission
by Anwar, at the behest of the police. But the tutoring could not get her to take an unequivocal
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stand with regard to Rameeza’s involvement in prostitution. Also, like Ghousia, she said, ‘I have not
slept with any other man before. I come from a respectable family. Other members of the family
also lead a respectable life. With the idea of maintaining the respect of my family I do not indulge
in these things.23
Qutubuddin, the uncle of Ahmed Hussain’s first wife, Shahzadi Bi, was a mason who sold
fish and mango. The Transport Minister, through Ali Saheb, Panchayat Board member, asked
Qutubuddin to furnish information about Rameeza’s antecedents before the Commission. And
what was the ‘information’ he procured?
Rameeza Bee had married another person about two years ago…. I learnt that she was married
a second time at Mandlam.… Why should I now say as to how many men Rameeza Bee got
married to and with whom she had been living? I got to know that she got married to a man
named Noor Ahmed. I personally do not know anything about the second marriage of Rameeza
Bee with Noor Ahmed. It is all hearsay. I do not know whether Rameeza Bee got married to
Ahmed Hussain.… The character of Rameeza Bee is wayward. I have only heard and did not see
about the behaviour or bad character of Rameeza Bee. I heard that she was friendly with the son
of one Sattar. And also she was friendly with Rahmatulla. I have not seen Rameeza Bee with these
people at all.24 [Emphasis added]
In privileging hearsay over lived testimony, there was a collapsing together of the two, whereby
the reality of Rameeza’s experience of rape faded into Qutubuddin’s assertions of what he had
heard but not seen.
Finally, one of the most horrifying events of the Enquiry itself was the sight of the burqa-clad
Rameeza standing quietly as one man after another entered the witness box to swear that he had had
sex with Rameeza on a certain day at a certain place after paying her Rs 10 or 15. Rameeza would then
be asked to lift the burqa, revealing her face for the man (and the packed, tense courtroom) to stare
at before he affirmed that she was indeed the same woman. All these men, like Qutubuddin, had
been mobilised by the police to testify in favour of the defence. This repeated public unveiling
enabled a moral displacement of Rameeza and her reconfiguration as a prostitute: Prostitutes should
not veil themselves and must be open at all times to the public gaze.25
The moral displacement of Rameeza was tied to the moral displacement of the community she
belonged to in complex and, at times, elliptical ways. Through Rameeza, the authoritative and
gendered State drew the community (Muslim) into the discourse. The discourse on rape itself was
mediated through the ‘community’ (prostitution—Muslim). The deflection of charges from rape,
illegal detention and murder to prostitution, soliciting and pimping inverted the proceedings to
one where the aggrieved survivor, Rameeza, could only resurrect herself after she had defended
herself successfully against charges of prostitution.
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87
From prostitution to marriage: Ghousia and Anwar Hussain had marriage certificates to prove
their alliance. Ahmed Hussain had gone through a Nikaah with Shahzadi Bi. Imam Saheb had
gone through a Nikaah with Qasim Bee. But Malan Bee had not taken due care in the case of
Ahmed Hussain’s marriage to Rameeza Bee.
I know that according to the principles of Islam a marriage cannot take place unless the Nikha is
performed. At my marriage, Nikha was performed. No Nikha was performed at the marriage of
Rameeza Bee to Ahmed Hussain, but before four respectable persons, garlands were exchanged
and betels distributed. I know that in Islam the relationship between a man and a woman
without the performance of a Nikha is illegal. I do not know whether my brother Imam Saheb
is keeping Sambakka without performing any Nikha with her.26
Malan Bee was, therefore, made to concede not just the illegality of her son’s marriage to Rameeza,
but also the fact of her brother’s illegal union with a non-Muslim. What was accomplished in the
process was the erasure of the family, both for Rameeza, who had been raped, and for Malan Bee,
whose son had been killed and daughter-in-law raped. The denial of a legitimate family to Rameeza
served as a demonstration of the absence, or lack, of legitimacy of this ‘natural’ social unit of the
community.
The gendering and subordination of the community was effected with both the demonstration of the lack of status/‘chastity’ of its women as well as the desecration of ‘holy places’ by its
men. Ahmed Hussain was ‘answering the call of nature’ when Rameeza was taken away and raped
by the policemen. The argument of the defence was that Rameeza had been arrested for indecent
exposure and ‘soliciting’. And, again, the fact of Rameeza’s rape and her husband’s death and the
public outrage all became immaterial when confronted by the accusation of ‘soliciting’. The place
where Rameeza’s rickshaw was parked was next to a graveyard.
I did not tell Mr Bari that my husband went into a graveyard for purposes of answering the
call of nature. Where my rickshaw was standing I saw a graveyard.… I do not know whether
Muslims respect Muslim graveyards or not. I do not know also whether the Muslims put flowers
on the graves and whether they perform fateha and I do not know that Muslims consider as a
bad thing in desecrating the graveyards by answering calls of nature or urine there.27
Interestingly, in addressing the issue of Ahmed Hussain’s death in police custody, the strategy
for the defence centred around appropriating the space (by defining what is legitimate behaviour
and what is not within its precincts), naming it (as holy space that cannot be desecrated) and investing it with the codes of sacredness and defilement that form the core of Brahminical Hinduism.
Yet, even this construction of the sacredness of the graveyard runs contrary to Hindu conceptions
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of the burial/cremation ground as essentially spaces of defilement and maleficence. And, finally,
there was the blurring of individual with community, where Ahmed Hussain’s act of urinating in
the graveyard epitomised, it seems, the habitual absence of respect for sacrosanct spaces by Muslims
in general.
And, yet, this location of Muslims within sacred space and time was not a simple linear process. Syed Murtuza Hussain, one of the policemen accused of raping Rameeza, recounts the time
when he apprehended Rameeza:
While going to the P[olice] S[tation] [with Rameeza] I observed the Vidyanagar Mosque. At
that time I heard the mouzzan call the good Muslims to prayer. By saying that prayers are
better than sleep. This call to prayer was for the morning prayers. It was about 5.15 when
I heard the Mouzzan calling for prayers.28
The call to prayer marked the moment of prostitution, rape and defecation in the graveyard.
The religio-cultural space of the community was appropriated and constructed in terms of what
was recognised, from the outside, as the essence of the culture of that community, its naming as
necessarily ‘other’. The manner in which small, apparently inane questions were used to frame
the discourse in larger nationalist terms, setting up constant and minute, yet eloquent oppositions
between Hindu and Muslim, legitimate and immoral, right and wrong, fact and hearsay. And
this entire exercise became authoritative because it implicated Muslims as individuals/families/
community to speak for, about and against themselves. No remnant of a ‘family imagery’ was left
in place, and there was an erasure of class in the entire discourse—the disentitlements and discrimination suffered by men and women of the working classes being violently overwritten by
distorted constructions of the community.
Shahzadi Bi, Ahmed Hussain’s first wife, foregrounded the imperatives of class and survival in
her testimony. Her older daughter had died a few days after Ahmed Hussain’s death, and she had
a three-week-old baby in her arms while she was in the witness box. Her deposition did not conform to any predetermined script. While she was unaware of Ahmed Hussain’s second marriage to
Rameeza, she resisted any suggestion that either her husband or her mother-in-law were involved
in prostitution.29
My husband was a mason. While working as a mason, he started the business of selling stones.
My husband was never acting as a pimp or indulging in immoral traffic. My mother in law
was earning as a midwife in Nandikotkur. I came to know of my husband’s death through
Qutubuddin. Qutubuddin also told me that the government is giving a compensation of
Rs 2000. A policeman had also come to my house. Qutubuddin brought me to Hyderabad for
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89
filing the petition…. I do not know what language the petition is in. I do not know what is
written in the petition. I also did not say anything about Rameeza Bee. If she says she does not
lay claim to the compensation given by the government, but I am entitled to the compensation,
I am quite happy…. They brought me here representing that they will get me Rs 2000.30
The moral family can only exist in juxtaposition to the immoral community.31 The prostitutes who deposed before the Commission were women who earned Rs 30 for a whole night’s
work, who circulated on the streets of the city at night in search of survival, and women and
men who depended on the patronage of the State, both as customer (‘passenger’ in Hyderabadi)
and protector. The State, in calling Muslim prostitutes and pimps to speak on its behalf and in
asserting that Rameeza and her entire family were engaged in prostitution, was, in fact, setting
up a political economy of the community as immoral. Significant to the present argument was
the fact that the key players—‘within the state’—were also Muslim.32 At the same time, this very
project of constituting the immoral community subverted the moral position of the State, since
what emerged quite clearly through the testimonies was that this immorality was created and sustained by the same State.33
What was interesting and politically significant was the impact of this manoeuvre by the State.
For the Majlis Ittehadul Muslimeen, for Justice Muktadar and other upper-class and middle-class
educated Muslim men like him, Rameeza soon came to epitomise the plight of their community.
Ironically, therefore, by the end of the entire process, there was a convergence in the representation
of the issue between both sides, resulting in the forging of a cultural kinship, with resonances that
were diametrically opposed. For the State, Rameeza encapsulated within her body the ‘immorality’
and ‘blasphemous character’ of the Muslim community, a ‘fact’ corroborated by other similar
members of her community, while for ‘her’ people she encapsulated the trials and tribulations of
a community fighting to survive with dignity and integrity.
This did not alter the painful impact of the rape on Rameeza, or the tragic consequences of the
undermining of citizenship for her, her family or her community. It merely demonstrated that the
State might deploy a range of strategies for the same effect. More importantly, it demonstrated
the ways in which the CJS is underwritten by codes of cultural hegemony and patriarchal delegation, that disable any possibility of an active engagement by women with systems of justice, and
that bind communal ideologies without to procedural realities within the system.
In September 1978, six months after the assault on Rameeza Bee, the Supreme Court delivered
the judgement in Tukaram vs State of Maharashtra,34 acquitting policemen charged with raping a
16-year-old Adivasi girl, Mathura, in a police station in March 1972. The rhetoric of the trial court
and the Supreme Court echoed that of the defence in the Rameeza case, provoking widespread
protests and demands for reform in rape laws.35
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THE TONGUES OF JUSTICE
The experiences of Rameeza Bee and Mathura demonstrated the discursive and, indeed, conceptual limitations of criminal justice systems, which are also the common ground between formal and
non-state legal systems: victims-survivors of rape are confronted with patriarchal communitarian
discourses both in their communities and courts. The 84th report of the Law Commission,
submitted in 1980, increased the age below which sexual intercourse would be statutory rape
to 18 years, consistent with the minimum age of marriage. However, it retained the exception to
marital rape, excluded the judicially-separated wife from the meaning of ‘wife’, retained the recommendations of the 42nd report on custodial rape and recommended wide-ranging changes in
the criminal procedure code.36 In August 1980, the Government introduced the Criminal Law
(Amendment) Bill 1980, which only partially included the recommendations of the Law Commission. This was followed by the setting up of a Joint Parliamentary Committee, which presented
its report after 44 sittings to the Lok Sabha in November 1982. While the amendments were more
or less in tune with what women’s groups had demanded, the debates in the Lok Sabha that led to
the enactment remained trapped in the very dichotomies that had choked any space for restoration
of women who had been assaulted.
A rape victim is given practically the same status as a prostitute. She bears a stigma in the eyes
of the society. She has to hide herself. She cannot openly say what’s happened to her. She has
to make a complaint surreptitiously.37
In the words of another Member of Parliament:
Once a lady is raped, not only is she not acceptable by society, but also she is not acceptable by the
parents, and instead of helping the lady everybody wants to take undue advantage for which she
is not liable or she is not to be blamed and ultimately she has to live a life of a prostitute.38
Framed as it was in the dichotomy of chastity/lack (loss) of virtue, most Parliamentarians believed
that a woman’s character was material to the assessment of evidence. Women Parliamentarians—
two, in this case—who advocated the removal of sexual history and inclusion of power rape—rape
using economic domination—did not find any support. It was necessary, Parliament felt, to expose
immoral women and protect respectable men.39
The courts spoke in a startlingly similar tongue before and after the laws had changed. There
are also several instances when trial court decisions, as quoted in Supreme Court judgements,
are completely at odds with the decision of the apex court. Yet, the discourse is framed within the
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same parameters, legitimising the culture of rape while penalising/condoning specific instances
of rape. A characteristic of judicial discourse on rape is the tendency to periphrasis. Brenda Silver
constructs very usefully for us a definition of periphrasis, which simply is:
…the use of many words where one or a few would do, has (a more devious side [which could
mean] ‘to speak around’) ‘a figure that simultaneously “under-and-over-specifies”’, or “the use of
a negative, passive, or inverted construction in place of a positive, active or normal construction”,
the circumlocution associated with periphrasis begins to suggest a refusal to name its subject
that emphasizes the fact of its elision.
She goes on to suggest that it is a figure that could be motivated in its usage, providing thus
the association between periphrasis, power and rape.40 Consistently in cases of rape, the linguistic
strategy (which is also deeply political) adopted by the judiciary has been to refuse to name the
offence. Very often, there is a clinical description of the prosecution’s charge at the beginning of
the judgement. Subsequently, the judge is—almost without exception—reluctant to use the word
‘rape’ to describe the act.
The discursive representations of rape as expressions of the ‘lascivious propensities of man’,
‘overpowering moods’, ‘voluptuousness’ ‘erotic impulses’ and ‘lustridden acts’ in which bestiality
defines not rape but lust thus normalises violence in sexual conduct, and reifies the girl-woman,
‘the little belle’, in a context structured by discrimination and exclusion.
Further, this discourse does not take place only in the ‘privacy’ of the courtroom, but is part of
and derived from a larger social construction of power which is predicated on the aggressiveness
of the male and passivity of the female.
What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest
motives were made out? The inherent bashfulness the innocent naiveté and the feminine tendency
to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise
the hypothesis of false implication.41
The ‘inherent bashfulness of women’ is a notion that gets reiterated in the Supreme Court over
several decades. In 1967, Madholkar and Bachawat deliberated on whether a female child of
seven-and-a-half years could be said to be possessed of ‘modesty’ which could be ‘outraged’. While
holding that any act, done in the presence of women, which is suggestive of sex according to the
‘common notions of mankind’ must come within the mischief of the relevant section in the IPC,
Bachawat further observed that ‘the essence of woman’s modesty is her sex and from her very birth
she possesses the modesty which is the attribute of her sex.’42
Apart from the fact that masculinity and femininity carry connotations of power, this power
is very often, especially in cases of custodial rape, enhanced by the actual and absolute possession
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of female bodies. The representation of rape as ‘lascivious behaviour’, ‘passion’ and ‘lewd immoral’
thought/behaviour sets up the pornographic voyeurism that builds the ground for an ideological
condoning of rape.
It seems that the accused was lustridden and seeing the prosecutrix alone lost control over
himself and took her by force. There is nothing surprising in the conduct of a man who is lustridden in behaving in a carefree manner trying to make most of the situation of the prosecutrix
being alone and helpless. The prosecutrix cried for help and struggled with the accused to save
her honour.43 [Emphasis added]
When the act of rape is described as a violent attack on a delicate deer by a wolf, the subtext, it
appears, articulates rape as aggression, and aggression as the defining trait of the species of man,
the woman belonging to an altogether different species.44 It is not any longer the mere ideological
condoning of rape but a reiteration of rape as the normal conduct of a man, as distinct from lustridden conduct. It is a critical validation of a culture of rape.
Ironically, this happens in the courtroom. The observation that rape is an ‘adolescent exercise’,
and that the ages of 14 to 16 are those in which boys experience ‘simmering sexual urges’, reinforces
the argument that rape and rapability are central to the construction of gender identity in the
Indian context.45 What is even more disconcerting, however, is the manner in which the ordinary
norms of public discourse in an extremely conservative patriarchal setting are completely set aside
in a rape trial.
In a particularly disturbing case, the repeated unsuccessful attempts of the accused to penetrate
are discussed in great detail. After the entire re-enactment, and the active participation of the court
in the re-enactment through a willing voyeurism, the court then dons its patriarchal mantle and
decrees that there has, in fact, been no rape because the rapist did not succeed in penetrating deep
enough.46 How deep is deep enough? Ironically, the failure to penetrate on the part of the rapist,
his lack of manhood, is then forgiven as an attempt to rape. The force, the gagging, the violence
are all wiped out by the failure to penetrate, which deed alone would place at risk, or violate the
‘modesty’, of the woman. The climax is, in fact, an anticlimax, an opportunity lost. Where is
the woman in this entire narrative?
Since rape has more to do with collective honour than with individual bodies, legitimate
kinship is central to the discourse on rape. The judgement in the rape of Pramila Kumari Rout, for
instance, uses as its point of departure the fact of ‘concubinage’ and ‘illicit intimacy’.47 The logic
of a rhetorical position on rape, particularly in this case, proceeds on the patriarchal assumption
that having violated the sanctity of matrimony, Pramila Kumari can lay no claim to the integrity/
sanctity of her person. Any violation of her body is not really a violation, because she is a woman
who knows, and in knowing, women make the ultimate transgression. Similarly, when a woman is
raped, her decision to report the rape is neither spontaneous nor independent but depends on
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the family and involves her morality. ‘Indian society being what it is the victims of such a crime
ordinarily consult relatives and are hesitant to approach the police since it involves the question
of morality and chastity of married woman.’48
In an atmosphere dense with the pervasiveness and constant possibility of sexual assault, judges,
when confronted with the reality of rape—a reality that cannot even be reined in by kinship—are
disbelieving of the possibility of a woman being raped by a relative:
…the learned Judge thought it inconceivable that a man would come to commit rape with a lady
who is his sister-in-law’s sister-in-law after about 6 years without any rhyme and reason and that
too in daytime.49 [Emphasis added]
Or
…such an act of barbarity would be unthinkable and counter to the social order for a brother
to do it on his sister-in-law. We too agree that if A-2 had done those acts attributed to him then it
would have been woeful and despicable of a human conduct.50 [Emphasis added]
The sister-in-law, in this case, was something of a burden, because not only did she not bring
in enough dowry, she was also poisoning the relationship between the brothers. Granting this fear
on the brother’s part, the High Court felt:
Even if there was some reason for A-2 to end the life of the deceased with a view to secure peaceful
life for his brother, certainly he would not have resorted to the most inhuman method of committing rape on his own brother’s wife that too, along with two of his servant [sic].51
This only emphasises the perception that a woman who has had ‘known’ sex is, by definition, not
rapable. The legitimacy or illegitimacy of her sexual relations simply underscores the irrationality
or impossibility of the crime. The impossibility of rape is epitomised in conjugal sex.
Her husband was with her during the intervening period of two days and therefore, it cannot
be ruled out that all these injuries have been received by her while cohabiting with her husband.52
[Emphasis added]
However, when a man rapes a blood relation, particularly a child, there is a shift in the perception of the assault.
…the alleged sexual assault followed by brutal and merciless murder by the…paternal uncle of
the deceased victim…age…7 years…sends shocking waves not only to the judicial conscience
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but to everyone having slightest sense of human values and particularly to the blood relations and
the society at large.53 [Emphasis added]
The ambivalence in the stand on the rape of a relation by marriage and the unequivocality of
the stand on a blood relation must be viewed in the larger cultural context of a clear separation of
interests between the two sets of kin, interests that not only do not converge, but, more importantly,
often conflict with each other.
Having raped a kinswoman, should the family tie constitute the mitigating factor in sentencing?
Justice Krishna Iyer wrote that:
…rape is violation, with violence, of the private person of a woman—an outrage by all canons…
the fact remains that the two families being close cousins are ready to take a lenient view of the
situation. Of course, this does not bind the Court in any manner. Therefore, taking an overall
view of the familial and the criminal factors involved, we reduce the imprisonment from 4 years to
2 years’ R.I.54
This, then, is a logical corollary to the exception in the definition of rape, which says that
sexual intercourse between a man and his wife who is not a minor is not rape, and suggests that
rape within kinship is a lesser crime because what is at stake at both ends is the honour of the
same family. The rhetorical devices used by the courts up to this point bear a startling resemblance to caste panchayats where women are but ‘dumb animals’ who ‘must be tied to the rightful
owner’s post’.55
Despite the developments in the law and principles of interpretation that recognised the difficulties of corroboration in cases of rape, the presumption on the absence of consent56 and past
sexual history, the discursive frameworks continued to exclude the realities of women’s experiences
till the middle of the 1990s.
BHANWARI DEVI: VIOLENCE AND RESTORATION
In 1984, the Government of India set up the Women’s Development Programme (WDP) in
Rajasthan with the primary objective of empowering rural women to play an active role in development. Bhanwari Devi from village Bhateri was recruited as a saathin—a community worker—in the
programme in 1985. The programme took up issues related to local government, land, water, the
public distribution system, minimum wages, health, literacy and child marriage—all issues relevant
to the area and immediately relevant to the lives of the saathins themselves. Child marriage was, for
instance, discussed for the first time in Bhateri as part of the programme in 1986. Bhanwari and the
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other saathins had married their daughters off before they attained puberty, prior to their joining
the programme. Discussing this issue and mobilising around it as part of the programme led to an
agreement among the saathins to postpone the gauna [post pubertal ritual signalling cohabitation]
of their daughters. Bhanwari began to educate her daughter and by 1989, she had established her
presence as a fearless and dynamic activist. She was also now a full time trainer in the WDP.
In April and May 1992, seven years after Bhanwari had joined the programme, the government decided to observe the anti-child marriage fortnight. Rather than be part of a meaningless
ritual protest, Bhanwari set about identifying families that were planning to marry off their young
daughters during Akha Teej. Ram Karan Gujar, a ward panch with a one-year old daughter was
the first person Bhanwari approached. Despite facing hostility from the village elders, Bhanwari
persisted, with senior programme and police officers following up and actively preventing the marriage. Tension mounted in Bhateri with the men of the village, (including Bhanwari’s father-in-law)
assaulting and abusing Bhanwari and her husband in retaliation for the police action. Bhanwari
was acutely aware of the gravity of the situation she was in, and attempted to resolve the tension
internally in the village rather than lodge a complaint with the police. Although attempts to ease
the situation were unsuccessful, a disturbed peace prevailed between June and September that year.
On 22 September, Bhanwari’s husband Mohan was physically assaulted and Bhanwari sexually
assaulted in the fields while at work. She identified Gyarsa Gujar and Badri Gujar as the men
responsible for assaulting her.
It was clear that all parties in the village had two positions on the issue of child marriage. While
they campaigned for its abolition, they continued to perform marriages in their homes. This was
true even of Badri Gujar, one of the accused.57 Bhanwari’s attempt to reconcile rhetoric with
practice threw the society into a crisis.
For Bhanwari, the problem of child marriage was not one of dichotomised conflict, but a
dilemma fraught with contradictions and multiple perspectives, something she recognised because
of her own belated awareness of the ‘problem’. The solution therefore lay in persuasion, which
would no doubt create anger and tension, but could be resolved with further persuasion. Spread
out as the problem was, not confined to a single caste, not a problem precipitated by men alone,
but one that adult women participated in as well, the solution, it would appear lay in ‘“imaginative
integrations and reconciliations,” which require attention to particular context.’58 The context is
clearly understood as that of politics with all its complexity: ‘The saathins prefer to work through
persuation [sic] and are against any police action because it makes people hostile and impedes
the saathins’ work.’59 People’s unwillingness, their anger, their dishonesty even, would, in the
ultimate analysis, present solutions, because new situations are generative and enable practical
perceptions.
To intervene in this situation and confront the brutal might of the State, and attempt to handle a
problem like child marriage with police action, disintegrates and disables a carefully-crafted political
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programme that might hold possibilities that are not immediately visible. For instance, it was,
after all, possible for Bhanwari to decide not to perform her daughter’s gauna and to educate her
instead. It was also possible for her to actually take up a case of rape in her village. Even after the
police action, she was focussed on reasoning that was particular to the situation she was in, refraining from registering an FIR when she and her husband were harassed, in the hope that her restraint
would retrieve the situation somewhat in her favour.60 What she had not anticipated was that
the moment the contentious politics of masculinity and power came into play in battles between
states and communities, the use of police force on communities would be met with the policing
of women by communities—rape a weapon of policing in this instance.
This is not the first time that women had become victims in battles between states and communities. Further, State action fused communities together with a common purpose, in a situation
that was otherwise bitterly divided along lines of caste. As early as June 1992, three months before
Bhanwari was assaulted, her father-in-law called a Kumhar jati panchayat which excommunicated her.61 Clearly, while the State initiated action, even elected representatives, the Members of
the Legislative Assembly (MLAs), condemned the action and demonstrated their support for the
Gujars. There was, in other words, a very complex configuration of power and politics at work,
in this context, which is immediately relevant to the central argument of this chapter—that rape,
even while it is a discrete assault on an individual woman, aims at disempowering and dispossessing her in ways that extend far beyond her body and her person.
When Bhanwari was assaulted, the drama was played out to its logical end. Nobody in the village
was willing to support her. The police were not willing to register her complaint. Ironically, the same
officer who had led the police action as a ‘follow up’ to Bhanwari’s work even asked if she knew
the meaning of ‘rape’. Doctors were not available in the public health centres (PHCs), although
Bhanwari knew that she must not change her clothes and she must go through the steps necessary
for her to see her case through to the court, regardless of the trauma of the assault—a fusion of
reason and emotion, even at the most difficult times. With co-workers (her only support in the
campaign), scattered in different villages, and her husband himself a victim of assault. Bhanwari
was able to get a medical examination 47 hours after she was assaulted.
The immediate convergence of interests between community, police, judiciary, the State-run
medical services and the executive cannot be understated as ‘negligence’.62 It is necessary to unpack
this convergence and the complicity in the sexual assault—both its perpetration and in the guarantee
of impunity that marked Bhanwari’s journey from Bhateri to Jaipur over four days, ending in
her having to deposit the skirt she was wearing at the Bassi police station as evidence, walking
three kilometres to a saathin’s village draped in her husband’s chadar.
One month after Bhanwari was raped, when no action had yet been initiated against those accused
of the assault, the saathins got together at a public meeting to speak out not just in solidarity with
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Bhanwari but also about their own experiences of assault that they had till then not made public.
Manju spoke of being raped and how other saathins helped her to get justice through the panchayat.
Gendi spoke about how a man pulled off his pants in front of her in the fields. Her reaction was
to drag him to her husband.63 So it was not only possible in the villages that the saathins lived in
to speak about issues like rape, as Bhanwari had done in 1987, and to work with families around
issues of child marriage, as she had done in her daughter’s case, but it was also possible to push the
panchayat—a patriarchal body—to deliver speedy justice in a case of rape, and to confront sexual
harassment in a manner unimaginable in the more enlightened metropolises.
The point to note is not that violence against women is a common experience: violence is our
context.64 What was the source of hostility in the environment? Bhanwari challenged both community and State through her persistence and effectiveness. Furthermore, the anger of communities against the State was deflected onto Bhanwari; and the anger of the State at the effectiveness
of a working-class Dalit woman’s activism which surpassed its own practice of linear politics was
also trained on Bhanwari, leaving her completely vulnerable. This returns us to our early question
in this section about whether a campaign against child marriage can, in fact, be constructed in
terms of employment, and what the pitfalls of that construction might be in the larger context of
a convergence of patriarchies between State and non-State actors—in this case, State and non-State
legal systems. Take the trial court decision in this case:
…Indian culture has not fallen to such low depths that someone who is brought up in it, an innocent,
rustic man, will turn into a man of evil conduct who disregards caste and age differences—and
becomes animal enough to a assault a woman. How can persons of 40 and 60 years of age commit
rape while someone who is seventy years old watches by; particularly in the light of Bhanwri Devi’s
acceptance that one of the rapists is a respected man in the village. The court believes that the
assertion of the prosecution that Gyarsa, 60 years, Badri, 40 years, committed rape in front of
the 70 year old Shravan and 59 year old Ramkaran is not to be believed, especially given that
neither the medical report nor the FSL report corroborates this rape. To the contrary, according
to the medical report there were no injuries on Bhanwri Devi’s private parts. According to the
FSL report, the semen stains on the ghaghra and in the vaginal smear belonged to group ‘AS’,
although neither of the accused belongs to that group. In our view, the prosecution, keeping in
mind the above circumstances, has not proved its case rationally and beyond doubt that Gyarsa,
60 and Badri, 40 raped Bhanwri Devi while Ramsukh and Shravan, Brahmin and therefore of
a different caste from the other accused looked on.
The accused Gyarsa and Badri are acquitted of all charges under Section 376 IPC and the
accused Ramkaran, Ramsukh and Shravan are acquitted of the charges Section 376/34 IPC.
Owing to inconclusive evidence, the accused are given benefit of doubt on the above counts.65
[Emphasis added]
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The existence of multiple systems for redress, while disabling of women’s entitlements, for
the most part—as Dhagamwar has demonstrated so powerfully—proved in Bhanwari’s case to be the
space for restorative justice. In terms of the resolution, clearly the trajectory of practical reasoning opens out space for negotiation within particular contexts where women live and work. While
antagonism can take the form of extreme violence against women activists, Bhanwari made the
difficult choice to return to Bhateri and renegotiate her position there by calling a jati panchayat
in 1993. There was, of course, hostility (her father-in-law claimed that she had pushed him into
a well), there was suspicion (she had just received Rs 10,000 as compensation from the Prime
Minister’s Relief Fund) and there was isolation (she had had no social contact with anybody in
the village).66 Yet, she called a panchayat, not to deliver justice because she was sexually assaulted,
but to restore her in some way to her context with dignity. Since that context is specific and one of
which she alone was part, she was clear that she did not want any members of the support group
that had backed her to be present at that meeting.
In February 1995, Bhanwari, along with 12 women from Prempura and Bhateri, decided to
participate in the meeting of the newly-elected Bhateri Panchayat which consists of five villages
including Bhateri. Among those elected were four women—one Scheduled Caste, one Scheduled
Tribe and two Brahmin. To her surprise, the newly elected sarpanch, an educated Scheduled
Caste man, Ramji Lal Ballai, garlanded Bhanwari and said that she was the ‘mukhiya sadasya’ of
the village. She was offered two packets of snacks. The main item on the agenda of the panchayat
meeting was the moving of the liquor compound out of the area, something that could be done
easily if women petitioned the panchayat, the sarpanch said, since women suffered most from the
drunkenness of their husbands.67 Bhanwari had succeeded in her mission. She reported feeling
welcome at the meeting and was happy at the outcome. Although around the same time, the neighbouring Bassi panchayat honoured the men accused of assaulting Bhanwari, and launched a
virulent attack on her and the groups that supported her, the fact that Bhanwari had been able to
renegotiate space and dignity within Bhateri points to possibilities for restoration that are located
outside patriarchal discourses of honour and chastity that constrain deliberations on justice for
women survivors of sexual assault.
It is not my intention here to present either an eulogy of caste panchayats or to suggest that
panchayats can completely replace courts in redressing violations. Rather, my attempt here is to
show that restoration, remedy and redress (or the lack of it), especially against sexual violence, takes
place simultaneously on different tracks. Women then negotiate their claims on several tracks as
well. In Bhanwari’s case, a resolution (howsoever tenuous) was possible at the level of the village
even when the doors of formal justice were shut to her.68 In contexts of graded and multiple patriarchies, how do women articulate multiple resolutions?
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GENDERING JUSTICE
Premananda was the founder of the Premananda Ashram, set up in 1989 in Pudukottai district of
Tamil Nadu. He had moved to India in 1984 with his associates from his native Sri Lanka—where
he had been running an ashram—to escape the ethnic conflict. The primary purpose of the
Premananda Ashram was to provide shelter and care to women and children. Most of the Ashram’s
inmates, approximately 200 young men and ‘grown up girls’, were Sri Lankan nationals. In 1997,
the Sessions Court in Pudukottai, presided over by a woman judge, Tmt. R. Banumathi, found
Premananda and six of his associates guilty of deceiving believers by claiming magical powers and
of misusing the belief reposed in him by disciples, cheating them and sexually assaulting several
young women residents of the Ashram, assaulting and murdering a male inmate and arranging
forced abortions of several women who had been so assaulted between 1990 and 1994.69 One of
the seven accused was a woman; the rest were men. There was an eighth accused, also a woman,
who had absconded, and two men turned approvers in the case. Seven charges were framed against
Accused 1, Premananda—criminal conspiracy (to commit rape, abetment of rape, causing abortion,
and murder); committing rape (13 counts); outraging modesty (four counts); causing the murder
of Ravi; wrongful confinement of Ravi; criminal intimidation and threat to cause death; cheating
an inmate and inducing him to part with his money.70
The trial began with the evidence let in by the defence. This, in fact, set the tone of the trial
that followed. According to Judge Tmt. Banumathi, ‘In view of the spate of evidence let in by the
defence of the alleged spiritual orientation of the first Accused and his spiritual powers, at first,
it has become necessary to explode such a myth.’71
Premananda described himself as a ‘spiritual master’ who ‘removes clouds of ignorance from
the mind’, thus showing the way to the fulfilment of people’s highest aspirations.72
I made this Ashram for a particular reason—to spiritually uplift the devotees. I made it for the
sake of all of you. You want to develop the highest wisdom and attain realization and so I have
created an environment conducive to your development.73
The two tricks that made Premananda well known were the regurgitation of the Siva linga on
Mahasivarathri (lingodbhavam) and the materialising of vibhooti.
Ling means a symbol, and Udbhava means birth or creation. So the word actually means
symbol of creation. The Lingam has the form of a mathematically perfect figure, the ellipsoid.
It has neither a front nor a back, and is without an end or beginning. The lingam is the fittest
symbol for representing the formless Divine Essence that is God. Thus, when the lingam emanates
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from the mouth of a saint like Swami Premananda it is symbolic of the birth in time and space
of THAT which is formless and eternal, within a simple geometrically perfect entity, the Lingam.
It is said that all things emerge from the Lingam and finally merge into the Lingam…. It is
said that those who have the good fortune of seeing the manifestation of Divinity in the act of
Lingodbhava, will be granted complete salvation in this lifetime and that there will be no more
rebirths for them.74
Characterising the Premananda Ashram as one that propagated a dark and despairing philosophy at a time when traditional religion had failed and material conditions were stressful enough
for even seemingly rational people to lose their bearings, Judge Banumathi began the proceedings
by inviting a magician to perform the tricks that made Premananda’s ‘spiritual powers’ so sought
after. The magician, Marudumuthu, demonstrated the lingodbhavam and materialised vibhoothi
from his empty palm in the open court. He swallowed two capsules filled with kumkum and then
swallowed a banana after placing a three-inch lingam in the centre. After resting for a half-hour, he
brought out the lingam from his mouth along with the red kumkum. These were magic techniques
he learnt from his father, also a magician.75
Judge Banumathi said:
In any religion, empty rituals cannot change the human behaviour for the better. Most of the
self styled Godmen, instead of advocating spirituality…they tend to hijack the minds of the
disciples by external manifestation like materializing vibhooti [sacred ash] and other material
objects…. When the mind believes the same, the mental slits are closed to accept any new ideas
or thinking.76
This demonstration of the deceptive potential of empty ritualism, in my view, is something
that is derived from the Self-Respecter’s critique of religion, a major aspect of which was the
‘critique of religious practices, of festivals and rituals and happenings’.77 While not rejecting completely the space of spiritualism in the human mind, what was, in effect, brought into the courtroom
was a creative engagement with matters of faith,78 linking the de-legitimising of spiritual power
to the commission of crimes with impunity. The exploitation for material gain of people’s faith in
the divine, Judge Banumathi said, comes within the meaning of cheating under Section 420 IPC.
The fact of material gain was inferred from the vast assets acquired by the Ashram. After displacing
Premananda from the realm of the sacred, the trial focussed on the sexual assault of 13 girls and
the murder of one man in the premises of the Ashram.
The young girls, seven of them from Sri Lanka and the remaining from Tamil Nadu, had all
entered the Ashram before they had attained puberty. They were confined when they had their
first menstruation, immediately after which they were sent to Premananda. One of them, left in
the ashram in Sri Lanka along with her three sisters by her widowed mother, said that Premananda
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had attempted to rape her even before she had attained puberty, when she was 11 years old,
and had molested her in 1985. He had, in fact, raped all four sisters. There were older women
working in the Ashram as well, but the complaints of assault came from the ones who were very
young, orphaned and totally dependent on the Ashram. Despite their age and vulnerability, the
girls put up resistance: one was punished by being stripped and assaulted in front of the other girls;
another was confined in a kennel for three days without food or water; yet another was battered
in the dining hall; Krishnaveni was tied to a calf and made to run along with it across the Ashram
when she attempted to escape.
When one of them, Sureshkumari, objected to his use of force, Premananda told her, ‘I am like
your father. If I have sexual intercourse with you, you will not beget a child.’79
To another of the victim-survivors, he said, ‘I am an incarnation of God. When so many wait for
my touch, my touching you means that you have earned merit [punyam] in a previous birth.’80
The continued sexual violence involved forcible intercourse and the performance of other
sexual acts which the girls found extremely objectionable but were compelled to engage in. In
Sugunakumari’s words: ‘He fell on me like a beast and raped me.’81
Ravi, a young Sri Lankan man who threatened to expose Premananda, was beaten to death in
the Ashram premises. The activities in the Ashram included sexual discourses, nude and ribald
dancing and ‘other exhibitionist facets…which are not elaborated in this judgment fearing
vulgarization’.82
The five male co-conspirators also resident at the Ashram ‘acted as pimps’, sending girls into
Premananda’s quarters by inducing fear of hurt, threat and deception. The woman who was also
accused (A3) was a doctor whose main job was to monitor the menstrual cycles of the young girls,
administer abortifacients to the eight girls who got pregnant consequent on their rapes and, when
they failed, to arrange and supervise over the abortions.83
The defence attempted to multiply evidence on the immorality of the girls who alleged they
had been raped. The girls, all unmarried, were found by the medical examination to be ‘accustomed
to sexual intercourse’.84 Considering that the Ashram was a residential facility and that the girls
had no life outside the premises, Judge Banumathi said that alleging immorality on their part was
in direct contradiction with the defence assertion that Premananda was a strict disciplinarian when
it came to matters in the Ashram. Furthermore, this line of argument was also completely irrelevant, since what was at issue was not that the girls had consensual intercourse with Premananda,
but one of total denial and celibacy on his part.
After the girls were moved out of the Ashram and into the secure custody of a women’s organisation, one of them, Aruljothi, was found to be pregnant. The pregnancy was terminated
with her consent, and a sample from the aborted foetus, along with blood samples of the girl and
Premananda, were sent to the Centre for Cellular and Molecular Biology, Hyderabad, where the
DNA test confirmed, ‘beyond reasonable doubt’, that Premananda was the father of the aborted
foetus and Aruljothi the mother.
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Apart from the fact that Premananda and his associates were found guilty and convicted on
all the charges, Judge Banumathi observed, with a note of regret: ‘The trial only added insult to
the injury of the victims. At times, even the Court was helpless on the insinuations passed on the
victim girls.85
The High Court, confirming the convictions, for the most part, reiterated the concern that courts
must be sensitive and understanding towards victims of rape, adding that women judges and
women police officers, capable as they are of inspiring confidence and trust among victims of
rape, should be entrusted with the investigation and trial of cases of sexual assault.86 It is important not to essentialise the observations of Judge Banumathi as being derived from her biology.
Rather, judicial horror, in this instance, was produced through the location of women in spaces
where they were likely to experience patriarchal delegation and were, therefore, able to comprehend
and anticipate its implications. The ‘knowledge’ of the implications of sexual violence, however,
could also be read within the codes of patriarchy by women, thereby leading them to justify greater
control. This possibility, however, cannot undermine the significance of the politics of presence
and the indispensability of representation in institutions of justice.
RAPE IS A VIOLATION OF THE RIGHT TO LIFE
In 1995, the case of Bodhisattwa Gautam was brought before the Supreme Court.87 This was a
case of intentionally contracting a fraudulent marriage, cheating the ‘wife’ and causing abortions.
Interestingly, while the rape provisions were not applied to this case, the entire discussion of the
case was in the context of rape, not of deception alone.
Rape laws that were in force, the Court observed, ‘do not, unfortunately, take care of the social
aspect of the matter and are inept in many respects’, based as they were on common law doctrines
that were weighted heavily against the woman. This already-biased formulation, I would argue,
was read with ideologies of honour and shame in India to disable completely any possibility of a
fair representation of the interests of women who had been sexually assaulted.
In a sharp departure from this, the Court placed rape in the framework of the fundamental
right to life under Article 21 of the Constitution:
Rape is…not only a crime against the person of a woman (victim), it is a crime against the
entire society. It destroys the entire psychology of a woman and pushes her into deep emotional
crises. It is only by her sheer will power that she rehabilitates herself in the society which, on
coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore,
the most hated crime. It is a crime against basic human rights and is also violative of the victim’s
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most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21.88
[Emphasis added]
For the Court, the right to life was a right to live with dignity, which would include all those
aspects that made life ‘meaningful, complete and worth-living’. The woman herself was reconstituted, not as a contingent, dependent being, but as one who:
…fortunately, under the Constitution enjoys equal status. Women also have the right to life
and liberty; they also have the right to be respected and treated as equal citizens. Their honour
and dignity cannot be touched or violated. They also have the right to lead an honourable and
peaceful life. They must have the liberty, the freedom and, of course, independence to live the
roles assigned to them by Nature so that the society may flourish as they alone have the talents and
capacity to shape the destiny and character of men anywhere and in every part of the world.89
This was also the year when the rules were framed for the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989. The Act came after Ministry of Welfare reports in 1986
showed that more than half the 1,000 rape cases officially registered in India every year concern
women belonging to the Scheduled Castes and Scheduled Tribes.90 The Supreme Court handled
eight cases of rape including rape of four minors in 1992. And how long did it take to decide these
cases? An average of 13 years. During this period, all the accused except one remained free and the
minors became adults by the time the cases were decided.91
The definition of atrocity under section 3 of the Act included three clauses, which referred explicitly to sexual violence against women belonging to the Scheduled Castes and Scheduled Tribes:
3. Punishments for offences of atrocities. (1) Whoever, not being a member of Scheduled Caste
or a Scheduled Tribe:
…
(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a
Scheduled Tribe…or commits any similar act which is derogatory to human dignity;
…
(xi) Using assault or force on any woman belonging to a schedule caste or tribe with intent
to dishonour or outrage modesty.
(xii) Being in a position to dominate the will of a woman and using that position to exploit
her sexually.
The gendered definition of assault drew on the specific experience of sexual assault and sexual
slavery that Dalit women were routinely subjected to in caste-based society. It is significant that
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the definition of atrocity against a Dalit woman encompasses the Constitutional vision of looking at the right to life, dignity and bodily integrity as aspects of the right to life which cannot be
derogated.
Four years later, the Supreme Court, in Chandrima Das,92 extended this interpretation further
by invoking the Universal Declaration of Human Rights. Hanuffa Khatoon, a Bangladeshi national
and an elected representative of the Union Board in Bangladesh, was gang-raped in February 1998
in the railway rest house of Howrah station, and again at a private residence outside the station, by
a group of men who included railway employees and touts. Chandrima Das, a lawyer approached
the High Court of Calcutta under its writ jurisdiction under Article 226 of the Constitution of
India claiming several reliefs, of which compensation from the railways to Hanuffa Khatoon was
one. The High Court awarded compensation of Rs 10 lakhs. The appeal placed two matters before
the Supreme Court, both related to the liability of the railways to pay compensation. The first
related to the fact that Hanuffa Khatoon was a foreign national, the second to the fact that the
offence was carried out by individuals for which the railways could not be held even vicariously
liable. Fundamentally, was compensation in this case a matter of public law or was it a matter of
private law, considering that non-citizens cannot claim protection under the fundamental rights
chapter of the Constitution?
The Court held:
The International Covenants and Declarations as adopted by the United Nations have to be
respected by all signatory States and the meaning given to the above words in those Declarations
and Covenants have to be such as would help in effective implementation of those rights. The
applicability of the Universal Declaration of Human Rights and the principles thereof may have
to be read, if need be, into the domestic jurisprudence.
Under the Universal Declaration of Human Rights, 1948, and the Declaration on the Elimination
of Violence Against Women adopted by the UN General Assembly in December 1993, there had
been a grave and serious violation of Hanuffa Khatoon’s human rights under international law, a
fact that the Court asserted it could scarcely ignore. In support of its view, it quoted English cases
where courts would presume that Parliament intended, in the event of ambiguity in domestic legislation, to act in conformity with, and not against, international standards laid down in conventions.
It also invoked discussions at a judicial colloquium in Bangalore, where the matter was discussed
between lawyers and judges and a similar decision arrived at with respect to the application of
international human rights instruments:
Judges and lawyers have a duty to familiarise themselves with the growing international
jurisprudence of human rights and particularly with the expanding material on the protection
and promotion of the human rights of women.93
Sexual Assault and the Law
105
By 1995, the movement for ‘women’s rights as human rights’ had forced public attention
worldwide on the question of women’s rights against violence, both in the context of debates in
the World Conference on Human Rights in Vienna in 1993 and in Beijing at the Fourth World
Conference on Women in 1995. Clearly, this had a perceptible impact on the jurisprudence of
sexual violence in India, particularly in the Supreme Court.
In 1997, women’s groups in Delhi approached the Supreme Court of India for directions concerning the definition of the expression ‘sexual intercourse’ as contained in Section 375 of the IPC.94
The key elements of the petition provided by the women’s groups may be summarised as follows:
child sexual abuse, largely neglected by law, was sought to be brought within the definition of
sexual assault; penetration, hitherto confined to penile–vaginal penetration, resulting in acquittal
or mitigation of sentences to attempted rape, must be redefined to mean penetration, whether
anal, with objects, or any other method, to encompass the range of assaults women and children
were subjected to; women’s consent should be defined to mean ‘unequivocal voluntary agreement’.
The entire effort aimed at bringing boys under the age of 16 and women of all ages within the
ambit of a comprehensive law on sexual assault. Furthermore, two sections in the Evidence Act
(146 and 155) which refer to past sexual history were recommended for deletion.
It may be recalled that these sections first came into question in the cases of Mathura and
Rameeza Bee, where past sexual history was used not to disprove the assault but to exonerate the
accused. These provisions in the law, therefore, were first problematised by feminist groups, and were
subjected to a larger critique of the patriarchal basis of criminal law, especially that part of criminal law that dealt with sexual assault on women, whether ‘outraging modesty’ or rape. Furthermore,
given the fact that the accusation of rape relied heavily on medical and forensic reports and that
it was physically impossible for the assaulted women and children to ensure medical examination
within the stipulated time, the recommendation drew on the experiences of women to put before
the Law Commission that the ‘absence of a medical report in the case of a sexual assault shall not be
a factor against the complainant/person assaulted’. While providing additional safeguards against
further trauma in the case of children who had been subjected to abuse, the recommendations
urged that all officers in every part of the CJS who dealt with cases of sexual assault must be trained
and sensitised in dealing with these issues.
The Law Commission recommended that the definition of rape should be replaced by a definition of sexual assault, which would mean penetration by any part of the body or by an object into
the vagina, anus or urethra of a person, or performing oral sex against the other person’s will, without
consent, with consent obtained through coercive means, with consent through impersonation/
deceit, when the person is not in a frame of mind to give informed consent, and when the consenting
person is below the age of 16. The explanation to the definitional section stated that ‘penetration
to any extent is penetration for the purposes of this section’, removing the rupture of the hymen
as the critical marker of rape/sexual assault. In an attempt to introduce protection against child
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sexual abuse, a new section, 376E, was sought to be introduced. This section spoke of touching
the body of another person with sexual intent, or inviting the other person to do the same, without
that person’s express consent, bringing into the ambit of the definition persons who were in a position of trust or authority with regard to a young person.95
After decades of finding that patriarchal predispositions and biases hindered a basic understanding
of women’s experience of sexual assault, with the norm being defined by the male experience,
the need has been urgently felt by groups across the country for judicial and other officers who
understand and empathise with women’s experience of violence and discrimination under patriarchy.
Within the judiciary, even long after Mathura, while judges did say that a greater number of women
in the judiciary would make a difference in the judicial view of women’s experience, especially of
sexual assault, representation continues to be a silent issue, particularly at the High Courts and
Supreme Court. As one judge wondered, notwithstanding the paucity of women judges, perhaps
women judges trying cases of sexual assault on women would put the survivor at greater ease
‘without allowing the truth to be sacrificed’.96 The Premananda case discussed earlier in this chapter
demonstrates this possibility. Yet, even the Law Commission report only speaks of greater sensitivity
and understanding, not of greater representation.
COLLECTIVE VIOLENCE AND SEXUAL ASSAULT
Combatants and other state agents rape to subjugate and inflict shame upon their victims, and,
by extension, their victims’ families and communities. Rape, wherever it occurs, is considered
a profound offense against individual and community honor. Soldiers and police can succeed
in translating the attack upon individual women into an assault upon their communities because of the emphasis placed in every culture in the world on women’s sexual purity. In other
words, women are raped precisely because the violation of their ‘protected’ status has the effect
of shaming them and their communities.97
Sexual appropriation and the use of violence (through prostitution, rape and physical torture)
have served to mark the masculinity of the state vis-à-vis the immoral (by definition feminine)
community. Women’s bodies (the communal space), by this token, quite literally acquired a territoriality, a spatial character, and existed distinct from and subordinate to the hegemony of the
state. The by-now familiar, age-old practice of conquest, where enemy men were killed and enemy
women taken into sexual slavery, has reproduced in characteristic yet bizarre, troubling ways in
postcolonial India.
The scale and gravity of the assault on Kashmiri women, women of North East India over
the past two decades and Muslim women in Gujarat in 2002 must be located within the larger
Sexual Assault and the Law
107
framework of collective violence which has included the disappearance and mass killings of men
of these communities and the collective sexual assault on women.
In the case of the northeastern states and Kashmir, the primary distinction that has been drawn
in the context of the political situation in these regions is between force (legitimate) and violence
(illegitimate).98 While this is a distinction that states and governments make all too easily, as Tilly
points out, the distinction is itself fraught with insurmountable obstacles. What is the precise
boundary between the two? Pertinent to our present concerns, can it be argued at all that sexual
assault of women in custody (even if they are suspected to be militants) comes within the ambit
of legitimate force? With respect to the permissible military actions against civilians during times
of conflict, can rape or sexual assault on civilian women be condoned as falling within the framework of this permissible action? What, then, can be the argument in a context where the government declares officially—at a UN forum—that there is no armed conflict within Indian territory,
and yet there is extensive human rights documentation of the systematic and widespread use of
sexual assault in the collective violence against civilian populations in these areas, not to speak
of violence against women who are perceived as combatants in militant groups.
Following the death of an Army Major in an exchange of fire with militants in Nagaland on
27 December 1994:
Members of the Task force of the 16 Maratha Light Infantry went totally berserk…venting
their wrath on the innocent civilian population of the town. Many women were raped, sexually
assaulted, stripped naked and their clothes dipped in petrol to burn their homes. Dr Yangerla
Ao, a doctor and President of the United Women’s Forum examined and treated at least fifteen
or sixteen cases of rape and molestation. However, only four women were willing to come forward. The others did not want to testify, partly due to fear of reprisal by the army and partly
due to the stigma attached to rape.99
The study by the North East Network discusses several such cases between 1966 and 2004 from
Manipur, Nagaland, Mizoram and Assam, arguing that the trauma of assault in each of these cases
has been aggravated by the taboo on disclosure in the communities, tied as rape is to ideologies
of honour and shame; by apathetic governments that guarantee impunity to the perpetrators of
sexual assault; and by skewed peace processes, like the Mizoram Peace Accord, that contain no
special provisions for women survivors of conflict.100 While most cases have gone completely unacknowledged by the government, a few cases of gruesome assault have been difficult to ignore.
However, in these cases, where compensation has followed acknowledgement, the harm has been
far beyond redress or remedy.
With respect to Kashmir, in the context of increased disappearances, rape and abduction, and
a heightened presence of the army, Zamrooda Khanday speaks of the ‘terror of the night’ that
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curtails women’s mobility and that has resulted in a sharp rise in stress-related morbidity among
Kashmiri women.101
In Gujarat, the targeted attack on Muslim women by Hindu men supported by Hindu women
has been documented by several human rights missions that visited survivors in the aftermath of
the carnage there in February–March 2002. The resultant fear and severe curtailment of mobility
of Muslim women and girls persist as serious problems.
The tola came from all sides. They were holding instruments like hockey sticks, trishul and
pipes. They were wearing chaddas (knickers). They hit the women. The police teargassed us.
They told us we do not have orders to protect you. This would not have happened if you did
not burn the railway compartment. Tell me, bibi, did we burn the compartment?
They threw my sister Shahjehan in the fire. When the children asked for water they gave
them petrol to drink and lit a match down their throat.
And then, what they did to my sister-in-law’s sister Kausar Bano? She was eight months
pregnant. They slashed her stomach and tore out the foetus. Then they held it up and threw it
in the blazing fire. They did all this with ease; as if there was all the time in the world.
For fifteen hours I lay with the dead…102
Syeda Hameed reports that testimonies of the aggravated sexual assault on Muslim women in
February–March 2002 ranged from rape and gang-rape to insertion of objects into the body and
stripping, followed by, in the majority of cases, gruesome murder. The violence was pre-planned,
organised and targeted, and sexual violence was part of the strategy. The scale of harm put the
experience within the framework of genocide and political pogroms—it was not merely another
form of criminal violence.103 Public and mass acts of sexual violence and gender-based crimes
such as cutting off of breasts and uterus, forced nudity, stripping and parading women naked,
forcible pregnancy, exhibiting sexual organs in the presence of women and mutilation of women’s
genital organs are no longer adequately expressed through the IPC’s definition of rape. In Tanika
Sarkar’s words:
The pattern of cruelty suggests three things. One, the woman’s body was a site of almost inexhaustible violence, with infinitely plural and innovative forms of torture. Second, their sexual
and reproductive organs were attacked with a special savagery. Third, their children, born and
unborn, shared the attacks and were killed before their eyes.104
The complicity of the police and the state government in the aggravated attacks, and the continuing impunity granted to them raise urgent questions about the adequacy of ordinary criminal
law in contexts of collective violence. Several witnesses from Baroda reported to the International
Sexual Assault and the Law
109
Initiative on Justice that the police often hit the stomachs of pregnant Muslim women in ‘combing
operations’ (house-to-house searches for Muslims) while shouting, ‘Kill them before they are born!’105
This charge of police participation in the violence was corroborated by witnesses from
Ahmedabad as well:
On April 30th they mobbed us from both sides. We were hiding. The Rapid Action Force
came. They threw a child from the third floor. P.S.I. Modi was very bad. He even got inside
AA53 area Camp no. 5 and sexually assaulted women in the camp. (Farah, woman survivor,
AA32 area, Ahmedabad.)
In AA56 area, D.C.P. Sawani himself entered the house and beat up small girls, beat up
women. One woman who was six months pregnant had an abortion. They said, ‘We will keep
all your men and make you prostitutes.’ They used real bad words… (Nahida, woman survivor,
now living in AA32 area, Ahmedabad).
There was a lot of suggestive sexual violence, verbal [abuse], hitting women on the breasts,
targeting private parts, pregnant women were specifically targeted. The policemen also said
that the [Muslim] child should not be born. There have been incidents of children being flung
across the room. (Sonia, woman activist, organizations BO18 and BO8, Baroda.)106
Where they did not participate, the police and state administration stood by and watched the
attacks without offering any protection to victims. It is in this context that international human
rights interventions acquire significance. The CEDAW Committee at its pre-session working group
examined the government report, raised a series of queries in October 2006 and called upon the
government to respond to it. The opening comment was on Gujarat:
The Special Rapporteur on violence against women reported that extensive violence against
women took place in Gujarat in 2002, and that following the Gujarat riots, a culture of impunity was created where sexual violence was allowed to continue and that women victims of violence
were denied access to justice…. Please provide information on the events in Gujarat and their
impact on women. This should indicate in particular the steps the Government has taken to
ensure access to justice and rehabilitation for women victims of violence in conjunction with
the Gujarat events. It should also include information on the steps taken to investigate and prosecute perpetrators of violence against women committed during the events; what provisions
the accused have been charged under; the status of arrests, if any; the status of trials and the
status of convictions; and punishments given. State what victim protection measures were put
in place during the trials, as well as the nature of legal aid and support given to victims. What
were the obstacles in bringing perpetrators to justice, and what measures were put in place to
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overcome them, and with what results? In addition, please give details of steps taken by the central
and state Governments to put in place gender-specific rehabilitation plans, and the number of
women who have benefited from these plans. Also explain the steps taken by the Government
to enable economic rehabilitation of the communities and rebuilding of basic infrastructures
destroyed during the riots. Also explain what confidence-building measures have been taken
for the reintegration of the society.107
In a situation of widespread discrimination, mass crime and the abdication by the state of all
responsibility to provide effective redress, international instruments like CEDAW have strengthened
the collective voice of survivors and their representatives in forcing accountability on a recalcitrant
government:
The Committee welcomes the State party’s statement that recommendations from this Committee will be considered for inclusion in the proposed Communal Violence (Prevention,
Control and Rehabilitation of Victims) Bill, 2005, and recommends the incorporation into
the Bill of: sexual and gender-based crimes, including mass crimes against women perpetrated
during communal violence; a comprehensive system of reparations for victims of such crimes;
and gender-sensitive victim-centred procedural and evidentiary rules. The Committee further
recommends that inaction or complicity of State officials in communal violence be urgently
addressed under this legislation.108
CONCLUSION
There has been no resolution as yet for the survivors of the Gujarat carnage. There has been no
resolution in the North East either. The perpetrators of mass crimes on the Sikhs in Delhi in 1984
were acquitted in a decision that has been widely condemned as a travesty of justice. The questions, therefore, remain.
The quantification, measurement or assessment of harm that must determine the course of
justice is a central aspect of criminal justice that is deeply problematised in cases of sexual assault,
especially in the context of collective violence. Access to the most basic mechanisms of justice and
redress are nonexistent in a situation where the state is complicit in the perpetration of assault,
as it has been in all the instances cited in the previous section. The larger questions that arise are
with respect to evidentiary and procedural standards, and special mechanisms to offer protection
to survivors which must take note of their aggravated vulnerability in a situation that is violently
polarised and in which they have no political voice.
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In tracking the shifting legal value of rape in Indian criminal jurisprudence, I have located the
‘crime’ of sexual assault within the specific socio-cultural and ideological contexts in which the
possibilities for justice have been located.
The struggles around consent in the colonial period focussed on the questions of child marriage and marital rape, where the complicity of the colonial state in ‘traditional’ expressions of
violent misogyny and sexual appropriation provided the ground for impunity. Debates on rape
were focussed on the place of the woman in the conjugal home—either as child-wife or as childwidow—and its formulation in criminal law drew on the subjective position of the woman rather
than on the objective facts relating to the act. Sexual intercourse transmuted into rape if the woman
was not a wife. Culture was key to the understanding of rape, as it continues to be today. This
interplay between culture, honour and sexual violence reached a crescendo during Partition, with
the abduction of women and their forced recovery, abandonment and even death.109
After the foundational violence—of which mass sexual assault was a major part—the issue of
state complicity in sexual assault continues to pose a major hurdle in the delivery of criminal justice
in independent India. The issue of community and marginality continues to lock women into
circles of disentitlement. Justification is sought, even by the courts, in the inherent immorality of
very young, barely adult, poor women of the Adivasi, Dalit and minority communities. Rameeza
Bee demonstrated through her experience this convergence of majoritarianism and class privilege, which in this case transmuted sexual assault into prostitution: a commodified consent is
written into the body of a working-class Muslim woman, similar to it being effected at around the
same time with a working-class Adivasi girl, Mathura.
The Rameeza Bee case also foregrounds for us the disabling of justice through the operation
of plural domains of formal law. It has been widely acknowledged that a rape trial is extremely
difficult to sustain because of the ideological condoning of rape and the resistance by families
and communities to disclosure. The procedural requirement that completely de-links a factfinding enquiry from the prosecution of a case, and the procedural possibility of perpetrators
moving prosecution out of the state in which the survivors of collective violence live—especially
when poverty compounds vulnerability—function as instruments of patriarchal delegation. The
intent is to, of course, anticipate bias in the trial and eliminate all possibilities for prejudging
guilt (the ever-present ideological bias of patriarchy that confounds the possibility of justice
for women does not enter into this account). In this case, although the accused policemen petitioned
for a transfer of the case to a neighbouring state, on grounds that a trial in the same state would
prejudge them because of the possibility of bias on the part of the judicial officer of the trial court
towards the findings of the High Court judge, the context was somewhat more complex. The protests and popular mobilisation on the need to ensure justice to Rameeza was so strong that it could
determine the course of the trial, or put pressure on the court. The transfer, however, ensured that
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the groundswell of support for Rameeza was considerably diminished. Enabling provisions in the
law are rarely read by Courts in an insurgent manner to provide redress to women who have suffered
sexual assault—a trend that is visible for over two decades after Rameeza was denied justice.
A closer look at the language that the courts have adopted in speaking about rape shows us
the shocking proximity that these discursive frameworks have with the patriarchal informal justice systems that construct women as property to be possessed or commodified. In this context,
where women find that they cannot reverse the denial of justice by the courts, the negotiation of
community spaces that they live in and must negotiate on a daily basis presents the possibilities
of restoration in the face of absolute dispossession—as Bhanwari’s experience demonstrates.
Through this entire period, movements for women’s rights and, later, movements for human
rights, as well, have been consistently pushing for greater justice and the elimination of patriarchal
bias in courts of law. Towards the mid-1990s, the courts had begun to observe that notwithstanding
the paucity of women judges, perhaps women judges trying cases of sexual assault on women would
put the survivors at greater ease ‘without allowing the truth to be sacrificed’.110 The conviction of
Premananda and his associates by Judge Banumathi demonstrates this potential. Without slipping
into an essentialising mode, I would like to draw attention to her concluding observation in the
judgement that the trial only added insult to injury and that the court was forced to be a helpless
spectator—a strong comment on the gendering of the judicial process. The transfer of the case of
murder and mass rape of members of Bilkis Bano’s family, and the assault on her in the violence
against Muslims in Gujarat in 2002 to Mumbai and the conviction of 12 persons (including one
policeman) in January 2008 by a Special Court in Mumbai, bear testimony to the strength and
resilience of human rights movements in the country.
In 1996, the reading of sexual assault within the ambit of Article 21 of the Constitution, the
right to life, finally brought the interpretation in courts in tune with the campaign of movements within the country over two decades, and with international human rights standards in
2000. The developments in the legal understanding of sexual assault—both within India and
internationally—can only be understood in the context of unrelenting human rights campaigns.
Rameeza Bee, Mathura, Bhanwari, the young girls in the Premananda Ashram, and Bilkis Bano
witnessed the soaring of protest and public outrage, and carefully crafted human rights advocacy
that forced institutions of justice to speak to their experience. Similarly, the observations from the
Committee on the Elimination of Discrimination Against Women, were the result of persistent
campaigning by human rights lawyers on the need for state accountability, and the demonstration
of due diligence by the state in international arena in cases of collective violence. The frameworks,
however, continued to locate women’s sexuality within marriage and family, with the Law Commission in 2000 refusing to recommend the removal of the exception to marital rape in the IPC even
while accepting most of the other recommendations of women’s groups for reform in the criminal
Sexual Assault and the Law
113
law on sexual assault. Movements are persistent. So, while criminal law does not recognise marital
rape as rape, the new civil law on domestic violence includes marital rape within the meaning of
domestic violence, against which women can seek protection and remedy111—the culmination of a
century-old struggle that began around the time that Phulmonee Dasi died.
While Bhanwari did not secure justice in the case of sexual assault in the trial court, in a twist,
her experience of assault was taken note of by the Supreme Court in the reduced terms of sexual
harassment at the workplace, through a case that has come to signify a major victory for the women’s
movement.112 Using the fact of Bhanwari’s vulnerability derived from the nature of her employment,
women’s groups petitioned the Supreme Court seeking legal redress against sexual harassment at
the workplace in what has come to be known as the Vishakha case. The guidelines on the issue
of sexual harassment were framed from the standpoint of the situation of a working class Dalit
woman’s vulnerability vis-à-vis the dominant castes, the police and the state/government. The
purpose of the writ petition was to seek:
…the enforcement of fundamental rights of working women under Articles 14, 19 and 21 of
the Constitution of India in view of the prevailing climate in which the violation of these rights
is not uncommon.113
And yet, in its very formulation, the Vishakha decision writes out of its purview assaults of the
kind Bhanwari was subjected to, and also the contexts of unorganised, casual, unregulated work,
where security is a critical issue for women.114 The significance of this decision, however, lies in the
judicial recognition of the notion of ‘hostile environments’ as obstructing women’s equal entry into
employment—a notion that could be extended to better understand the subjugation of women
through sexual violence.
The politics of collective violence and the structuring of its contexts by rape cultures115 continue
to pose the biggest hurdle to movements for human rights, especially because the law continues to
read mass sexual assault in the disaggregated terms provided for by the Penal Code. Patricia Viseur
Sellers’ argument116 that the prohibition of sexual violence is a peremptory norm under international
law, and by that token binding on national governments, enables a reassessment of the legal value
of sexual assault in the context of mass crime.
ACKNOWLEDGEMENT
I am grateful to Vasanth Kannabiran and Pratiksha Baxi for comments on the draft of this chapter.
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NOTES & REFERENCES
1. This chapter looks specifically at the problem of heterosexual assault and women’s experience of rape in India.
2. Sangari, Kumkum. Forthcoming. ‘Gendered Violence: The Discourses of Culture and Tradition’, in Coomaraswami,
Radhika and Nimanthi Rajasingham (eds), Contested Terrains: Gender, Violence and Representation in South Asia.
New Delhi and Colombo: Women Unlimited and International Centre for Ethnic Studies.
3. Baxi, Pratiksha. 2005. ‘The Medicalisation of Consent and Falsity: The Figure of the Habitue in Indian Rape Law’,
in Kalpana Kannabiran (ed.), The Violence of Normal Times: Essays on Women’s Lived Realities. New Delhi: Women
Unlimited in association with Kali for Women.
4. See also, Terry, Jennifer and Jaqueline Urla. 1995. Deviant Bodies: Critical Perspectives on Difference in Science and
Popular Culture. Bloomington and Indianapolis: Indiana University Press.
5. For a detailed analysis of cases relating to women in panchayats, see Dhagamwar, Vasudha. 2005. ‘“The shoe fitted
me and I wore it…”: Women and Traditional Justice Systems in India’, in Kalpana Kannabiran (ed.), The Violence of
Normal Times: Essays on Women’s Lived Realities. New Delhi: Women Unlimited in association with Kali for Women.
For details on the representation of women in public and political life, see The Second and Third Alternative Report
on CEDAW. 2006. Delhi: National Alliance of Women.
6. Smart, Carol. 1989. Feminism and the Power of Law. Chapter 2. London: Routledge. Smart, Carol. 1995. Law,
Crime and Sexuality. Chapters 4, 5. London: Sage. cf. Lacey, Nicola. 1998. Unspeakable Subjects: Feminist Essays in
Legal and Social Theory, p. 114. Oxford: Hart Publishing.
7. Report on the Indian Penal Code, Vol. 1, 1846. cf. Dhagamwar, Vasudha. 1992. Law, Power and Justice: The
Protection of Personal Rights in the Indian Penal Code, p. 112. New Delhi: Sage Publications and The Book Review
Literary Trust.
8. Singha, Radhika. 2000. A Despotism of Law: Crime and Justice in Early Colonial India, p. 139. New Delhi: Oxford
University Press. Also Dhagamwar, Vasudha. 1992. Law, Power and Justice: The Protection of Personal Rights in the
Indian Penal Code, pp. 112–13. New Delhi: Sage Publications and The Book Review Literary Trust.
9. Singha, Radhika. 2000. op. cit., p. 123. New Delhi: Oxford University Press. Mohamedan law, specifically, clubbed
these very different acts under the broad category of zina.
10. Report on the Indian Penal Code, Vol. 1, Para 446, cf. Dhagamwar 1992: 115, and Singha 2000, op. cit., p. 143.
11. Singha 2000, op. cit., p. 144.
12. Evidence given in court by Radhamonee, mother of Phulmonee, cf. Sarkar, Tanika. 2001. Hindu Wife, Hindu
Nation: Community, Religion and Cultural Nationalism. New Delhi: Permanent Black, p. 226.
13. Cf. Sarkar 2001, op. cit., pp. 211–12.
14. Queen Empress vs Hurree Mohan Mythee, ILR 1891 Calcutta 49, cf. Dhagamwar 1992.
15. Court deposition by a young girl abused by her elderly husband. She was restored to the husband by the British
magistrate. Reported in The Bengalee, 25 July 1891. cf. Sarkar 2001, op. cit., p. 238.
16. For a detailed discussion of this report and the 84th Report of the Law Commission of India, see Dhagamwar
1992.
17. Ibid.
18. See Baxi, Pratiksha. 2000. ‘Rape, Retribution, State: On Whose Bodies?’ Economic and Political Weekly, 1–7 April
2000, 35(14).
19. This section is based on an earlier essay co-authored with Kannabiran, Vasanth. 2002. ‘Desecrating Graves, Defiled
Bodies, Dispossessed Community’, in Kannabiran, Kalpana and Vasanth Kannabiran (eds), De-Eroticizing Assault:
Essays on Modesty, Honour and Power. Calcutta: Stree.
20. Statement of Rameeza Bee before the Muktadar Commission. Cross-examination by Suresh Babu, Advocate for
Surender Singh, Sub-Inspector, Nallakunta police station.
Sexual Assault and the Law
115
21. Statement of Anwar Hussain before the Muktadar Commission. Cross-examination by MA Bari, advocate for
Rameeza Bee, and cross-examination by the Commission.
22. Statement of Ghousia before the Muktadar Commission. Cross-examination by the Commission. Emphasis
added.
23. Statement of Razia before the Muktadar Commission.
24. Statement of Qutubuddin before the Muktadar Commission.
25. According to Middle Assyrian Law, ‘He who has seen a harlot veiled must arrest her, produce witnesses (and) bring
her to the palace tribunal; they shall not take her jewelry away (but) the one who arrested her may take her clothing;
they shall flog her 50 (times) with staves (and) pour pitch on her head.’ Further, ‘If a seignior has seen a harlot veiled
and has let (her) go without bringing her to the palace tribunal they shall flog that seignior 50 (times) with staves; they
shall pierce his ears, thread (them) with a cord, (and) tie (it) at his back, (and) he shall do the work of the king for
one full month.’ Lerner, Gerda. 1986. The Creation of Patriarchy, pp. 135–36. New York: Oxford University Press.
26. Statement by Malan Bee before the Muktadar Commission. Cross-examination by Mamanram Sharma.
27. Statement of Rameeza Bee before the Muktadar Commission.
28. Statement of Syed Murtuza Hussain before the Muktadar Commission.
29. Statement of Shahzadi Bi before the Muktadar Commission. A parenthetical remark says: ‘The witness appears to
be a simple straightforward rustic lady.’
30. Statement of Shahzadi Bi before the Muktadar Commission.
31. A Commissioner of Police in Hyderabad, in the early 1990s, a Hindu Brahmin, commented that the reason why
he used force against prostitutes was to protect the chastity of housewives. He was enraged when it was suggested
in the presence of prostitutes who had been locked out of their homes that he should consider restraining the
husbands instead. This was at a meeting between this author, four sex workers and then Commissioner of Police,
Mr R. Prabhakar Rao to register a protest against police harassment of sex workers in the old city.
32. The Home Minister, M.M. Hashim, who personally contacted people in Rameeza’s hometown and in Hyderabad
to depose against Rameeza, was Muslim.
33. All the witnesses produced by the police deposed that they paid mamool (protection money) to the police on a
client-to-client basis.
34. (1979) 2 SCC 143.
35. An Open Letter to the Chief Justice of India. (1979) 4 SCC 17–22. Letter written by Professors Upendra Baxi,
Vasudha Dhagamwar, Raghunath Kelkar and Lotika Sarkar. For an analysis of the use of custodial rape against
women who married by choice, like Mathura, and the use of accusations of rape and abduction against consenting
adults, see, Baxi, Pratiksha, Shirin M. Rai and Shaheen Sardar Ali. 2006. ‘Legacies of Common Law: “Crimes of
Honour” in India and Pakistan’, Third World Quarterly, 27(7): 1239–53.
36. For a detailed discussion, see Dhagamwar 1992.
37. Datta, Amal. 1983: 421, Lok Sabha debates, November 21 cf. Baxi, Pratibha. 2000. ‘Rape, Retribution, State: On
Whose Bodies?’ Economic and Political Weekly, 1–7 April 2000, 35(14): 1197.
38. Nusrul Islam 1983: 393, L S debates, December 1 cf. Baxi 2000, op. cit.
39. Baxi 2000, op. cit.
40. Silver, Brenda R. 1991. ‘Periphrasis, Power and Rape’ in A Passage to India, in Lynn A. Higgins and Brenda R. Silver
(eds), Rape and Representation, p. 115.
41. Justice Krishna Iyer in Krishan Lal, Petitioner vs State of Haryana, Respondent. 1980 3 SCC 1959. Emphasis added.
This statement is repeated in Chandraprakash Kewalchand Jain (1990), Gurmit Singh (1996) and State of HP V
Lekh Raj and Another (1999).
42. State of Punjab vs Major Singh, AIR 1967 SC 63.
43. State of Rajasthan vs Shri Narayan, (1992) 3 SCC 615.
44. Justice JN Bhatt in 1999 Criminal Law Journal 1714, Taufik Ahmed Fauzdar Khan Ansari and etc., Appellants vs
State of Gujarat, Respondent.
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Kalpana Kannabiran
45. ‘Introduction: Rereading Rape’, in Lynn A. Higgins and Brenda R. Silver (eds), Rape and Representation, p. 3, argues
this point in the American context.
46. Madan Lal, Appellant vs State of J&K, Respondent. 1998 AIR (SC) 386.
47. Pratap Misra and Others, Appellants vs State of Orissa, Respondent. 1977 AIR (SC) 1307.
48. Justice A.M. Ahmedi, in State of Rajasthan vs Shri Narayan (1992) 3 Supreme Court Cases 615, para 6, p. 623.
49. Observation of the High Court judge, Justice Jasraj Chopra, quoted in the Supreme Court judgement, State of
Rajasthan vs Shri Narayan (1992) 3 Supreme Court Cases 615, para 3, p. 619.
50. State of T.N., Appellant vs Suresh and Another, Respondents. 1998 AIR (SC) 1044.
51. Ibid.
52. Observation by Justice Jasraj Chopra, quoted in the Supreme Court judgement, State of Rajasthan vs Shri Narayan
(1992) 3SCC 615, para 3, p. 620.
53. Justice Faizanuddin in Laxman Naik, Appellant vs State of Orissa, Respondent, 1995 AIR (SC) 1387.
54. Krishna Iyer in Phul Singh, Appellant vs State of Haryana, Respondent, 1980 AIR (SC) 249. What is at issue here
is not the reduction in sentence but the rationalisation of that reduction.
55. Dhagamwar, Vasudha. 2005. ‘“The shoe fitted me and I wore it…”: Women and Traditional Justice Systems in India’,
in Kalpana Kannabiran (ed.), The Violence of Normal Times: Essays on Women’s Lived Realities, p. 50. New Delhi:
Women Unlimited in association with Kali for Women.
56. Section 114A of the Indian Evidence Act.
57. Report of the meeting ( jajam) in Bhateri on 22 June 1992. ‘Bhateri Gang Rape: Dateline’, Archives of Jagori,
Delhi, n.d.
58. Barlett, Katharine T. 1990. ‘Feminist Legal Methods’, Harvard Law Review, February, 103(4): 851.
59. Letter to the Home Minister signed by women’s organisations from all over the country, dated 4 November 1992.
Archives of Jagori.
60. ‘Bhateri Gang Rape: Dateline’, p. 3. From the archives of Jagori, Delhi, n.d.
61. Ibid.
62. Letter to the Home Minister signed by women’s organisations from all over the country, dated 04.11.1992, for
instance says, ‘Government doctors, magistrate and other officials were all negligent’. Archives of Jagori, Delhi.
63. ‘Nyay Karo Ya Jail Bharo: Saathins Break the Silence’, Archives of Jagori, n.d.
64. Misra, Nirja, Shobhita Rajan and Kavita Srivastava, The Gang Rape of Bhanwri: Response of State, WDP and Women’s
Groups. Paper presented at ‘VIth National Conference on Women’s Studies’, Mysore.
65. Excerpt from the Bhanwari Devi judgement.
66. Misra, Nirja, Shobhita Rajan and Kavita Srivastava. 1993. The Gang Rape of Bhanwri: Response of State, WDP and
Women’s Groups. Paper presented at ‘VIth National Conference on Women’s Studies’, Mysore.
67. Kavita Srivastava, Report of meeting held on 21 February 1995 of the Bhateri panchayat, as told by Bhanwari.
Archives of Jagori.
68. There is also the story of Basanti and Urmila from village Karauli in Rajasthan. Basanti was raped by Urmila’s
husband, Mahesh. The all-male panchayat decided that the ends of justice would be served if Basanti’s husband,
Raja, raped Urmila. Basanti did not accept the verdict. Urmila walked in and declared that her husband should go
to each woman in the village and beg her forgiveness. That being unacceptable to her husband, she declared she
would not live with a rapist. 2nd and 3rd Alternative Report on CEDAW, Delhi: NAWO, 2006.
69. Sessions Case No. 7/1996. Inspector of Police, CBCID, Pudukottai, Crime No. 1183/94 of Viralimalai Police
Station. Accused Premananda and others. In the Court of the Sessions of Pudukottai Division.
70. The happenings in Premananda Ashram came to light when two girls escaped from the Ashram and approached
members of AIDWA, Chennai, for help. A team of lawyers, part of the People’s Union for Civil Liberties, provided
support to the victim-survivors and assisted the prosecution.
71. Para 69. This was also necessary given the fact that a number of educated persons and intellectuals were unwilling
to concede that Premananda was a ‘Sex Maniac’. See Para 76, 79.
Sexual Assault and the Law
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.
92.
93.
94.
117
‘Who is Swami Premananda?’ Available online at www.sripremananda.org, accessed in April 2007.
www.sripremananda.org.
Ibid.
Sessions Case No. 7/1996. Paras 91–99.
Sessions Case No. 7/1996. Para 79.
Geetha, V. and S.V. Rajadurai. 1998. Towards a Non-Brahmin Millennium: From Iyothee Thass to Periyar, p. 307.
Calcutta: Samya.
Ibid.: 308.
Sessions Case No. 7/1996. Para 208.
Shantha, PW 11, Sessions Case No. 7/1996. Para 293.
Sugunakumari, PW 8, Sessions Case No. 7/1996. Para 268. My translation.
Para 143 of the judgement in Sessions Case No. 7/1996.
Paras 106-13 of the judgement in Sessions Case No. 7/1996.
Para 29 of the Judgement in Sessions Case No. 7/1996. For an excellent analysis of the ideological foundations of
the ‘two-finger test’ in medical jurisprudence, which is said to demonstrate whether or not a woman is ‘accustomed
to sexual intercourse’, see Baxi, Pratiksha. 2005. ‘The Medicalisation of Consent and Falsity: The Figure of the
Habitue in Indian Rape Law’, in Kalpana Kannabiran (ed.), The Violence of Normal Times: Essays on Women’s Lived
Realities. New Delhi: Women Unlimited in association with Kali for Women.
Sessions Case No. 7/1996. Para 474.
Chandradevi and Ors vs State of Tamil Nadu, MANU/TN/2335/2002 [Criminal Appeal Nos. 895, 896 and 897 of
1997 and Criminal M.P. Nos. 780 to 782 of 1998]. This was also confirmed by the Supreme Court in Kamalanantha
and Ors vs State of Tamil Nadu AIR 2005 SC 2132.
Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty, 1996 AIR (SC) 922.
Justice S. Saghir Ahmed, Ibid.
Ibid. There is, of course, an equivocation here as well, especially with reference to the natural roles of women—mother,
daughter, sister, wife, and their natural duties to society, to shape the destiny and character of men everywhere, but
is one that can be glossed over, considering the way in which it took the judicial discourse on rape forward.
Indian press reports have repeatedly commented that many such complaints concern allegations of rape by the
police, but they are often not investigated, are difficult to prove and very rarely result in prosecutions. The Minister
of State for Welfare informed the Rajya Sabha on 14 November 1986 that of the 936 rape cases reported between
January and June that year, 492 concerned women belonging to the Scheduled Castes and Scheduled Tribes. The
same ministry reported the following year that rape of women belonging to the Scheduled Castes and Scheduled
Tribes was particularly common in the northern Indian states. On 5 March 1987, the Deputy Minister of Welfare
was reported as saying that Uttar Pradesh headed the list with 229 such cases reported during 1986 and the first
month of 1987, followed by 151 cases in Madhya Pradesh and 73 in Bihar during the same period. A December
1986 report placed before the Rajya Sabha noted 4,400 reports of rape registered by SC/ST women in the fourand-a-half years between March 1982 and October 1986. Amnesty International, cf. PUCL Bulletin, September
1988, 8(9).
PUCL Bulletin, XIII: 12/12–93. The 2nd and 3rd Alternative Report on CEDAW, Delhi: NAWO, 2006, provides a
detailed report on violence against Dalit women.
Chairman, Railway Board and Others vs Chandrima Das (Mrs) and Others, 2000 (2) Supreme Court Cases 465.
Chandrima Das at p. 26 of the judgement, op. cit.
Sakshi petitioned the Supreme Court. As part of this process, three other organisations, namely, Interventions
for Support, Healing and Awareness (IFSHA), the All India Democratic Women’s Association (AIDWA) and the
National Commission for Women (NCW) also presented their views on the proposed suggestions. See the 172nd
Report of the Law Commission of India on Reform of Rape Laws, 2000.
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95. For a queer critique of the construction of sexual offences, see Arvind Narrain’s essay in this volume.
96. State of Punjab, Appellant vs Gurmit Singh and Others, Respondents 1996 AIR (SC) 1393.
97. Human Rights Watch, 1995, cf. Basu, Amrita. 2000. ‘Engendering Communal Violence: Men as Victims, Women
as Agents’, in Leslie and McGee (eds), Invented Identities: The Interplay of Gender, Religion and Politics in India.
New Delhi: Oxford University Press.
98. Tilly, Charles. 2003. The Politics of Collective Violence. Cambridge: Cambridge University Press.
99. Goswami, Roshmi, M.G. Sreekala and Meghna Goswami. 2005. Women in Armed Conflict Situations: A Study by
North East Network, Guwahati: North East Network, p. 35.
100. Ibid.: 108.
101. Khanday, Zamrooda. 2005. ‘Negotiating reproductive health needs in a conflict situation in the Kashmir Valley’.
Trivandrum, Achutha Menon Centre for Health Science Studies, Sree Chitra Tirunal Institute for Medical Sciences
and Technology.
102. Testimony of Shah Bano, cf. Hameed, Syeda S. 2005. ‘Sexual Abuse in Revenge: Women as Targets of Communal
Hatred’, in Kalpana Kannabiran (ed.), The Violence of Normal Times: Essays on Women’s Lived Realities. New Delhi:
Women Unlimited in association with Kali for Women, p. 317.
103. Upendra Baxi makes this distinction in ‘The Gujarat Catastrophe: Notes on Reading Politics as Democidal Rape
Culture’, in Kannabiran 2005, op. cit., p. 335.
104. Sarkar, Tanika. 2002. ‘Semiotics of Terror: Muslim Women and Children in Hindu Rashtra’, Economic and Political
Weekly, 13 July 2002, 37(28): 2872–76.
105. ‘Threatened Existence: A Feminist Analysis of the Genocide in Gujarat’, Report by the International Initiative for
Justice (IIJ), December 2003, Chapter 3: Centrality of Sexual Violence and Sexuality to the Hindutva Project,’ p. 2.
106. ‘Threatened Existence: A Feminist Analysis of the Genocide in Gujarat’, Report by the International Initiative
for Justice (IIJ), December 2003, Chapter 3: Centrality of Sexual Violence and Sexuality to the Hindutva Project,
pp. 2–3.
107. CEDAW/IND/Q/3: http://daccessdds.un.org/doc/UNDOC/GEN/N06/467/90/PDF/N0646790.pdf.
108. ‘Concluding Comments of the Committee on the Elimination of Discrimination against Women: India’, CEDAW,
37th session, 15 January–2 February 2007. Available online at http://www.un.org/womenwatch/daw/cedaw/
cedaw37/concludingcomments AU/India_Advance%20unedited.pdf, para 25.
109. See Chapter 11 in this volume by Ritu Menon.
110. Justice A.S. Anand in State of Punjab vs Gurmit Singh and Others, 1996, 2 SCC 384.
111. Protection of Women from Domestic Violence Act, 2005.
112. Vishaka and Others vs State of Rajasthan and Others, (1997) 6 SCC 241.
113. Ibid.
114. The beneficiaries of Vishaka are primarily white-collar workers and professionals as the case law on this issue will
demonstrate.
115. ‘A rape culture signifies ways of doing competitive party politics and managing governance in which brutal collective
sexual assaults on women remain enclosed in contrived and escalating orders of impunity…. Rape culture sees violence
against women as misfortune, not an act of “injustice”’. Baxi, Upendra. ‘The Gujarat Catastrophe: Notes on Reading
Politics as Democidal Rape Culture’, in Kalpana Kannabiran (ed.), The Violence of Normal Times: Essays on Women’s
Lived Realities, pp. 341–42. New Delhi: Women Unlimited in association with Kali for Women.
116. Sellers, Patricia Viseur. 2002. ‘Sexual Violence and Peremptory Norms: The Legal Value of Rape’, 34 Case Western
Reserve Journal of International Law 287.
SECTION II
Vulnerability, Governance and the Law
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Arvind Narrain
5
Social Exclusion and Criminal Law
S.R. Sankaran
INTRODUCTION
It was in late 19th century under British colonial rule that the Indian Penal Code (IPC) emerged
as the uniform criminal law of the country. As stated in its Preamble, the IPC 1860 was intended
to provide for a general Penal Code for India. It deals with a wide range of offences grouped together in different chapters, starting with abetment (Chapter V); criminal conspiracy (Chapter VA,
added in 1913); of offences, against the State (Chapter VI); relating to army, navy and air force
(VII); against public tranquillity (VIII); relating to public servants (IX); elections (IXA, added in
1920); contempt of the lawful authority of public servants (X); false evidence and against public
justice (XI); relating to coin and Government stamps (XII), weights and measures (XIII); offences
affecting public health, safety, convenience, decency and morals (XIV); relating to religion (XV);
affecting the human body (XVI); against property (XVII); relating to documentary and property
marks (XVIII); criminal breach of contracts of service (XIX); relating to marriage (XX); cruelty
by husband or relative of husband (XXA, added in 1983); defamation (XXI); and criminal intimidation, insult and annoyance (XXII). This has been the basic criminal law of the country for
almost 150 years.
It needs to be mentioned that the criminal law of India is much more than the IPC of 1860.
In addition to the IPC, there are a large number of penal legislations which have been enacted
from time to time, both in the pre-independence and the post-independence periods as well as at
national and state levels. The architecture of criminal law in India, thus, consists of a plethora of
legislations that need to be seen together to understand the overall framework.
The IPC accommodated the ruling notions in the Indian society as well as the notions and
interests of the British rulers in the 19th century. What was the extent to which the basic criminal
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law initially took note of the aspects of discrimination in the Indian social order, particularly
caste-based discrimination such as Untouchability? To what extent did the exploitation of the
marginalised sections of society such as bonded labour figure in the Penal Code?
Chapter XV of the IPC, as mentioned earlier, referred to offences relating to religion, such as
injuring or defiling places of worship with intent to insult the religion of any class (Section 295),
deliberate and malicious acts intended to outrage religious feelings of any class by insulting its
religion or religious beliefs (Section 295A), disturbing religious assembly (Section 296), trespassing
on burial places and so on (Section 297), and uttering words, and so on, with deliberate intent to
wound religious feelings (Section 298). While the reference in these Sections is to religion, reference
to caste or community can be found in Chapter VIII, which deals with offences against public
tranquillity. Section 153A in Chapter VIII refers to the offence of promoting enmity on grounds
of religion, race, place of birth, residence, language, caste or community; and Section 153B refers
to the offence of imputation or assertion prejudicial to national integration against any class of
persons by reason of their being members of any religious, racial, language or regional group or
caste or community. However, the IPC did not accord any recognition to various acts of crime
based on social discrimination committed by members of the dominant section of society against
members of the weaker sections. In other words, the IPC did not place offences against weaker
sections, such as the offence of Untouchability, in a special category.
Similarly, Chapter XVI of the Code which deals with offences affecting human body refers to
slavery (Section 370 and Section 371) and unlawful compulsory labour (Section 374). But the
issue of bonded labour did not attract the attention of the IPC.
While such issues of social exclusion did not enter the realm of criminal law as it was initially
formulated, significant changes took place over time in the society and the law with regard to these
aspects. Indeed, by 1950, almost a century after the formulation of the IPC, the Constitution
of India specifically created—as a part of the fundamental rights in Part III, and in what may be
termed as an unusual and unique feature of Constitutional law—two punishable offences in Articles
17 and 23.
Article 17, laying down that ‘Untouchability’ had been abolished and its practice in any form was
forbidden, stipulated that the enforcement of any disability arising out of ‘Untouchability’ would
be an offence punishable in accordance with law. Article 23 laid down that traffic in human beings
and begar and other similar forms of forced labour were prohibited and that any contravention of
this provision would be an offence punishable in accordance with law. These are rare, and perhaps
the only, instances of offences directly finding place in a Constitution. It is worthy of note that:
they relate to the socially excluded and marginalised sections of the society.
Starting from this background, this essay will seek to address the issues of social exclusion and
criminal law, specifically with reference to Untouchability and bonded labour.
Social Exclusion and Criminal Law
123
PENAL CODE (1860) TO THE CONSTITUTION (1950)—AN OVERVIEW
The system of a hierarchy of castes—the caste system—is an expression of institutionalised
inequality and indignity peculiar to India. It signifies power, on the one side, and vulnerability,
on the other; privilege and oppression; honour and denigration; plenty and want; reward and
deprivation.1 In short, it means graded inequality, with elevation for some and degradation for
others. Untouchability, which is embedded in the caste structure, is an extreme form of denial
of human dignity; it is a stigma which is the unfortunate distinguishing marker for the people
variously described by terms such as ‘Outcastes’, ‘Exterior Castes’ and the ‘Depressed Classes’, who
were later grouped together under the Constitutional nomenclature of ‘Scheduled Castes’.
Prior to the British rule, some of the ruling regimes in India had actively enforced the privileges
and disabilities of various caste groups. Often, such enforcement of the caste order was enjoined
in Hindu legal tradition as the prime duty of a Hindu ruler. One of the important achievements
of British rule in India was the emergence of a nationwide criminal legal system with a norm of
formal equality before law. But the British rulers came to India as traders and conquerors, not as
social reformers concerned with improving the conditions of life of the people. The policy of the
British was, therefore, directed towards securing stability and effective control over the people. The
uniform criminal legal system they introduced was not necessarily intended to take cognisance of
or reform the system of graded inequality represented by the caste system.
A charter prepared in 1891 by the Dravida Mahajana Sangam, an organisation of Paraiahs (an
Untouchable community in Madras Province), which contained an appeal to the government to
disallow the dominant castes from exercising their prejudices, is illustrative of the social situation of
the Untouchable community towards the close of the 19th century.2 The demands in the Charter,
which related to perceived humiliations, included one for a legislation to be enacted to punish
whoever addressed a Paraiah in a derogatory manner; that equal respect and treatment be given
to members of the Depressed Classes in running the administration of local bodies; that the rule
in the Jail Manual which empowered authorities to force Paraiahs to perform demeaning tasks be
repealed; and that the restriction preventing the Depressed Classes from entering or sitting near
courts and offices where Hindus were employed be removed.
There was, in fact, a certain degree of reluctance on the part of the government to publicly acknowledge the social disabilities suffered by caste groups such as the Untouchable communities. Although
the Government of Madras compiled a list of the Depressed Classes during the 1920s, the Government
of India refrained from any such official classification until 1936, on the ground that it would be unfair
to stigmatise these groups by an official acknowledgement of their lowly status. It was observed that:
…though officers of the Government have from time-to-time attempted to estimate the total number of depressed classes in the country, the Government of India have consistently avoided themselves
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S.R. Sankaran
making any precise classification of the group forming what are called the depressed classes if only on
the ground that owing to the social disabilities to which members of the depressed classes are exposed,
it would be in the highest degree undesirable that any official authorization might appear to extend
to such classification. The fluidity of social distinctions and the efforts of the classes lowest in the
scale aided by social reformers to improve their status make it the more desirable that government
should abstain from doing anything which would tend to give rigidity to these distinctions.3
[Emphasis added]
It can be said that the British law did not recognise or try to maintain the caste order as such,
and that the British were less willing than the earlier rulers to lend civil and criminal powers to
uphold the prerogatives claimed in inter-group relations. But the prescriptive rights and disabilities
received their greatest governmental support from recognition of caste autonomy, that is, from
the reluctance of the courts or the government to interfere with the right of a caste group to apply
sanctions against those who defied its usage or contested its claims. This reluctance or support was
based on the notion of the upholding of customary rights; but these rights were often conceptualised
in terms of the prerogatives of caste groups.4
Instances of such support can be discerned from the findings of the courts or orders of the
government during the British rule. For instance, with respect to the use of religious premises,
caste groups often secured the support of the courts in upholding their claims for preference and
exclusiveness. In these cases, the courts were giving effect to a hierarchical and differentiated Hindu
ritual order in which various castes were arranged, by text or by custom, and certain prerogatives
and disabilities to be measured by concepts of pollution and of required ceremonial distance. In
1908, the Privy Council upheld (Sankalinga Nadan vs Rajarajeshwari Dorai)5 the exclusion of the
Shanars (a community close to the Untouchables in Kerala) from a temple and granted damages
for its purification after a careful scrutiny of their social standing. The Judicial Committee of Privy
Council concluded that the presence of the Shanars was repugnant to the religious principle of the
worship of Shiva as well as to the sentiments and customs of caste Hindu worshippers.
As late as 1945, the Nair (an upper caste in Kerala) users of a public temple were granted
damages for the purification ceremonies necessitated by pollution by the Ezhavas (a community
close to the Untouchables) taking bath in tanks (Chatunni vs Appukuttan).6 Untouchable Mahars
who entered the enclosure of a village idol were convicted by a court (Atmaram vs King Emperor)7 on
the ground that when custom that has held for many centuries ordains that an Untouchable whose
very touch, in the opinion of devout Hindus, is pollution should not enter the enclosure surrounding
the shrine of any Hindu God, such entry is a defilement and is an offence under Section 295 of
the IPC (injuring or defiling place of worship with intent to insult the religion of any class).
However, in regard to non-religious public facilities such as wells, schools and roads, such
exclusionary practices did not enjoy the same level of judicial support. The Lahore High Court
Social Exclusion and Criminal Law
125
in Khajjan Chand vs Emperor (1926) held that other users had no right to prevent Chamars (an
Untouchable community) from drawing water from a public well. However, some of the other
courts considered that a right to exclude might be upheld if a custom of exclusive use by higher
castes could be proved.
In 1923, the Bombay Legislative Council resolved that Untouchables be allowed to use all public
watering places, wells, schools, dispensaries, and so on. The Provincial Government, however, did
not take direct responsibility but requested the Collectors of the districts to advise the local bodies
in their respective jurisdictions to consider the desirability of accepting the recommendations made
in the Resolution insofar as it related to them.
In 1938, the legislature of the Madras Province passed the Madras Removal of Civil Disabilities
Act 1938 (Madras Act XXI of 1938), the first comprehensive Penal Act to remove social disabilities.
The Act made it a penal offence to discriminate against Untouchables not only with regard to
publicly-supported facilities such as roads, wells and transportation, but also with regard to any
other secular institution to which the general public was admitted, including restaurants, hotels,
shops, and so on. The Act also barred the judicial enforcement of any customary rights or disability
based on membership of such a group. Any violation was made a cognisable offence.
Between the end of the Second World War and the enactment of the Constitution, with power
passing into Indian hands, legislations removing the civil disabilities of Untouchable groups,
including entry into temples, were passed in most of the provinces and in many of the larger princely
states. These statutes followed the general line of Madras Removal of Civil Disabilities Act.
CONSTITUTION OF INDIA (1950)
Independence, followed by the enactment of the Constitution, marked a watershed in the history
of the Indian nation. The Objectives Resolution on the Constitution, moved by Pandit Jawaharlal
Nehru and passed by the Constituent Assembly on 22 January 1947, clearly referred to the
safeguards for the Depressed Classes:
The Constituent Assembly declares its firm and solemn resolve to proclaim India as an
independent sovereign republic and to draw up for her future governance a Constitution…
wherein shall be guaranteed and secured to all the people of India Justice—social, economic
and political, equality of status and of opportunity and before the law, freedom of thought and
expression, belief, faith, worship, vocation, association and action subject to law and public
morality…wherein adequate safeguards shall be provided for minorities, backward and tribal areas,
and Depressed and other backward classes. [Emphasis added]
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Consistent with these objectives, independent India adopted its Constitution, which came into
force on 26 January 1950. The Preamble to the Constitution placed ‘Justice—Social, Economic and
Political’ as first among the objectives of constituting India into a sovereign democratic republic
in line with the Objectives Resolution.
The founding fathers of the Constitution were acutely aware of the iniquitous forces embedded
in the social systems, economic institutions and political organisations in relation to the weaker
and vulnerable sections of the society. Therefore, they considered it necessary to provide for specific
safeguards in the Constitution in the favour of these very sections. As pointed out by Babasaheb
Ambedkar, political democracy could not last unless there lay social democracy at the base of it
which recognised liberty, equality and fraternity, an inseparable trinity, as the principles of life.
The Constitution incorporated a number of commands for the elimination of the inequities
and inequalities prevalent in the Indian society, and for promoting equality and social justice.
Article 14 of the Constitution guaranteed equality before law and equal protection of laws.
Article 15 prohibited discrimination on the grounds of religion, caste, sex or place of birth as well as disabilities in regard to access to public places, and also specifically provided that nothing shall prevent
the State from making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 17
abolished ‘Untouchability’, forbidding its practice in any form and making the enforcement of any
disability arising out of Untouchability a punishable offence. Article 23 prohibited traffic in human
beings and begar and similar forms of forced labour and declared any contravention of this provision
as a punishable offence.
The Constitutional perspective combines both horizontal rights applicable to all citizens and
vertical rights to enhance the life chances of vulnerable groups such as the Scheduled Castes and the
Scheduled Tribes. As pointed out by the distinguished jurist Upendra Baxi, in many respects, the fundamental rights emerge not just as a corpus of limitation of the power of the State but also as an
onslaught on intransigent attitude and behaviour in society and culture. In other words, through
Article 17 (outlawing of Untouchability) and Article 23 (proscription of various forms of serfdom
and traffic in human beings), the Constitution directly addresses and confronts the oppressive formations in civil society and mandates State action in this respect to secure basic human rights. The
Indian Constitution is unique in that it designates the violation of these human rights of the Scheduled
Castes and the Scheduled Tribes as offences created by the Constitution itself and casts a Constitutional
duty on Parliament to enact legislations, regardless of the federal distribution of legislative powers
provided in the Constitution.
Article 35 in Part III of the Constitution lays down that ‘Parliament shall have and the legislature
of a State shall not have power to make laws…prescribing punishment for those acts which are
declared to be offences under this Part.’ Parliament is specifically directed to make laws prescribing
punishment for acts declared offences under Part III as soon as may be after the commencement
of the Constitution. Until Parliament discharged this duty, existing laws prescribing punishment
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for such acts were continued in force until altered, repealed or amended by Parliament. Thus, the
then existing provincial laws were continued but were frozen in their existing form.
UNTOUCHABILITY LAW (1955) TO ATROCITIES LAW (1989)
In 1955, five years after the commencement of the Constitution, Parliament exercised this exclusive
power regarding Untouchability and passed the Untouchability (Offences) Act, which came into
force from 1 June 1955. The Untouchability (Offences) Act outlawed the enforcement of disabilities
‘on the ground of untouchability’ in regard to, inter alia, entrance and worship at temples, access to
shops and restaurants, the practice of occupations and trades, use of water sources, places of public
resort and accommodation, public conveyances, hospitals, educational institutions, construction
and occupation of residential premises, holding of religious ceremonies and processions, and the
use of jewellery and finery. The imposition of disabilities was made a crime punishable with fine
up to Rs 500 and imprisonment up to six months. Twenty-one legislations of various states, which
were in force at that time, were also repealed to the extent to which they corresponded or were
repugnant to the national legislation.
In view of the shortcomings observed during the two decades of its implementation and
based on the reports of various committees, particularly the Committee on Untouchability
and Economic and Educational Development of the Scheduled Castes (Elayaperumal Committee
1965), an improved version of the Untouchability (Offences) Act was enacted as the Protection
of Civil Rights Act (PCRA), which came into effect on 19 November 1976. The new title of the
legislation itself served to emphasise the fact that the practice of Untouchability would be treated
as a violation of civil rights. The Act defines civil rights as any right accruing to a person by reason
of the abolition of Untouchability under Article 17 of the Constitution. The PCRA broadened
the definition of the public place where Untouchability could not be practiced, and narrowed the
range of religious practices and determinations exempt from the operation of the law. The penalties
were also enhanced to a minimum of imprisonment for one month and a fine of Rs 100, and a
maximum of imprisonment for six months and a fine of Rs 500.
The second and further convictions attracted a higher threshold of punishment. The Act was
extended to cover both preaching and practice of Untouchability and insulting Untouchables,
including justifying untouchability on philosophical or religious grounds or any tradition of caste system.
All the offences were cognisable and non-compoundable and to be tried summarily. Punishment
was stipulated for enforcing religious disabilities, social disabilities, refusal to sell goods or render
services as well as other offences such as insult, molestation, obstruction, boycott, unlawful compulsory labour to do scavenging or sweeping or removing carcasses or jobs of similar nature on
the ground of Untouchability. The Act also provided for the cancellation or the suspension of
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licences of convicted persons, as well as the suspension of grants of land or money to a place of
public worship, educational institution or a hostel guilty of an offence.
Section 10A empowers the government to impose collective fines. Section 15A of the Act
places a duty on the state governments to ensure that rights accruing from the abolition of
Untouchability are made available to, and are availed of, by persons subjected to any disability
arising out of Untouchability. This included legal aid, the setting up of special courts, the
supervision of prosecution, periodic surveys, the identification of Untouchability-prone areas and
steps for the removal of Untouchability in such areas. The Protection of Civil Rights Rules was
formulated in 1977.
Neither the Untouchability (Offences) Act nor the PCRA attempts any definition of the word
‘Untouchability’.8 In (Devarajiah vs Padmanna)9 one of the earliest judgements that commented
on the issue explicitly, it was held that the Untouchability forbidden by the Constitution refers
to that Untouchability ascribed by birth and includes the practices directed at those regarded as
Untouchables in the course of historic development; that is, persons relegated beyond the pale of
the caste system on grounds of birth in a particular caste.
The concept of ‘atrocity’ against the Scheduled Castes (and the Scheduled Tribes) evolved over
a period of time. Perhaps the term atrocity was used for the first time by the Commissioner for
Scheduled Castes and Tribes—a Special Officer appointed under Article 338(1) of the Constitution,
as it originally stood—in his Annual Reports in relation to crimes against the Scheduled Castes and
the Scheduled tribes. During the 1970s, an administrative practice emerged of categorising certain
offences under the IPC, if committed against the Scheduled Castes and Tribes, as ‘atrocities’. In
fact, in 1979, it was felt that ‘in order to constitute atrocity, there must be an element of cruelty,
brutality or wickedness in the commission of the particular offence, or it should have the background
of being committed with a view to teach a lesson to the Harijan’.
However, in 1984, Government of India clarified to the various state governments that the
term ‘atrocity’ would denote an offence under the IPC committed against Scheduled Castes/
Scheduled Tribes by persons belonging to communities other than the Scheduled Castes and
the Scheduled Tribes; in other words, all offences under the IPC committed against members of
Scheduled Castes/Scheduled Tribes by persons who were not members of such communities would
constitute atrocities. An important point to be noted is that crimes by the dominant sections against
the weaker sections have been treated on a special footing.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was enacted in 1989
and came into effect from 30 January 1990. The Statement of Objects and Reasons of the Act
vividly explained the rationale for the new legislation in the following terms:
Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and
the Scheduled Tribes, they remain vulnerable. They are denied a number of civil rights. They are
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subjected to various offences, indignities, humiliations and harassment. They have, in several
brutal incidents, been deprived of their life and property. Serious crimes are committed against
them for various historical, social and economic reasons…. Because of the awareness created
among the Scheduled Castes and Scheduled Tribes, through spread of education etc., they are
trying to assert their rights and this is not being taken very kindly by others. Occupation and
the cultivation of even the government allotted land by the Scheduled Castes and the Scheduled
Tribes is resented and more often these people become victims of attacks by the vested interests
Under the circumstances, the existing laws like the Protection of Civil Rights act 1955 and
the normal provisions of Indian Penal Code have been found to be inadequate to check
these crimes. A special legislation to check and deter crimes against them by non-Scheduled
Castes and non Scheduled Tribes has therefore become necessary.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 created, for the
first time, a whole new range of offences termed ‘atrocities’ and provided for stiff sanctions. The
underlying spirit of the Act and Rules is that the Scheduled Castes and the Scheduled Tribes, by
their very location in the oppressive social system, are extraordinarily vulnerable, and that their
human rights should be protected by law and its implementing agencies from onslaught by others.
The Act cast a statutory duty on the government to take concrete steps to prevent atrocities and
ensure a feeling of security among the Scheduled groups.
The bulk of these offences were directed against the patterns of behaviour and related forms of
public humiliation which shatter the self-image of the members of the Scheduled communities.
First, there are the modes of destroying self-esteem, such as the forced feeding of obnoxious matter,
forcible public parades after stripping the victims, throwing obnoxious objects in the living spaces;
forcing people to leave places of residence, denying them traditional access to places of public resort
and all other related forms of public humiliation. Under the Act, all these constitute atrocities.
Second, atrocities have a clear economic dimension. The Act, therefore, criminalises begar, bonded
labour, wrongful occupation, possession, cultivation transfer and dispossession of land belonging
to or notified as allotted to the Scheduled groups. Gender-based aggression forms the third group
of offences. Assaulting the women of Scheduled groups with intent to outrage or dishonour their
modesty is an offence. So is their sexual exploitation by those in a dominating position. Deliberate
abuse of legal and administrative processes constitutes the fourth class of atrocities. This includes false,
malicious and vexatious legal proceedings and even laying false information before a public servant
(which includes the police). Fifth, in a far-reaching addition to the IPC, the Act prescribes that
any offence carrying a sentence of 10 years or more, if carried out against the person or property
of a member of the Scheduled Castes or Tribes on the ground of her belonging to either of these
communities, would attract a life sentence. (A crime under the IPC becomes an enhanced crime,
so to speak, in view of the relations of power, as provided in Section 3(2)(v) of the Act.) Sixth, the
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use of force or intimidation of any member of the Scheduled Castes or Tribes affecting the decision
not to vote or to vote for a particular candidate in a manner other than that provided by law is an
atrocity. This provision restores the democratic honour of the Scheduled Castes and Tribes.10
Public servants are liable to punishment for atrocities and those, including the police, who
default in their statutory duties stand exposed to a substantial prison term. The Special Courts are
empowered to presume abetment if the fact of rendering financial assistance to the perpetrators of
such offence is proved. Also, if atrocities committed involve land disputes, the courts are to presume
that the offence was committed in pursuance of conspiracy. Chapter 2 of the Act provides even for
externment of anyone likely to commit an atrocity under the Scheduled and Tribal areas specified
under Article 244 of the Constitution. The Act also provides for the appointment of special public
prosecutors. The Act provides for severe penalties—atrocities carry a minimum jail sentence of six
months and a maximum of five years. The Act provides for the expediting of trials through the
agency of the Special Courts, the denial of anticipatory bail, penalty for neglect of duties by public
servants, as well as a duty to take concrete steps towards preventive action against atrocities and to
restore a feeling of security among the Scheduled Castes and Scheduled Tribes.
The Act is not only a penal measure but also enjoins the State by law a duty to ensure effective
measures for the prevention of atrocities and to assist in various ways the victims of atrocities. The
identification of areas of probable atrocities and the adoption of advance safety and preventive
measures form part of the scheme. Periodic surveys providing social audit of the workings of the
Act are also mandatory. The schemes may be prepared by the committees specially constituted for
this broad range of specific tasks. An annual report on the administration of the Act is to be laid
before Parliament.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules were issued by
Government of India in 1995, six years after the Act was promulgated. The Rules are exhaustive
and provide for precautionary and preventive measures, supervision and spot inspection by District
Magistrates, the setting up of a Scheduled Castes and Schedule Tribes Protection Cell, relief and
rehabilitation of victims, and state-level and district-level vigilance and monitoring committees.
Rule 3 specifically provides for the identification of atrocity-prone areas by the state governments
and orders to District Magistrates, Superintendents of Police or any other officers to visit the said
areas and review the law and order situation, to cancel the arms licences of non-Scheduled Caste
and Scheduled Tribe persons, to seize illegal firearms, to providing arms licenses to the Scheduled
Castes and the Scheduled Tribes, to constitute high-power state-level committees, district- and
divisional-level committees, to set up vigilance and monitoring committees, to set up awareness
centres and organise workshops to educate the Scheduled Castes and the Scheduled Tribes about
their rights and protections, to encourage non-governmental organisations to establish and maintain
awareness centres and to deploy special police forces in the identified areas.
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Rule 6 provides for spot inspections by District Magistrates and others. Rule 7 requires that
the offences be investigated by a police officer not below the rank of a Deputy Superintendent of
Police. Rule 8 envisages the setting up of Scheduled Castes and Scheduled Tribes Protection Cells by
the state governments. The Rules make provisions for travelling allowance, maintenance expenses,
and so on to victims or their dependents. Rule 12 lays down specific measures to be taken by the
district administration, including mandatory visits by District Magistrates and Superintendents
of Police, the registration and investigation of offences, and relief and rehabilitation. Rules 16 and
17 provide for the setting up of state-level vigilance and monitoring committees, and district-level
vigilance and monitoring committees with the District Magistrates as chairpersons. The scales of
relief for the victims of atrocities have also been set out in detail in the Annexure to the Rules.
LAW ON MANUAL SCAVENGING (1993)
Manual scavenging refers to the practice of removing human excreta with the hands and carrying
the load on the head, hips or shoulders. Usually with the help of a pair of tin scrappers and a wicket
basket or a bucket, the manual scavengers remove and carry human excreta from the latrines to the
dumping grounds. The carrying of human excreta on the head is the abiding image of a manual
scavenger. It is an obnoxious and degrading occupation that the manual scavengers themselves
despise but feel helpless and trapped into doing.
The dehumanising practice of manual scavenging is closely interlinked with Untouchability.
It is well known that this work is socially-assigned and imposed upon certain Untouchable castes
of India. With very few exceptions, all manual scavengers are from the Scheduled Castes, with
a large majority of them being women. The continuance of manual scavenging constitutes a
gross violation of human rights and the worth of the human person, and flies in the face of the
Constitutional guarantee assured, in the Constitution’s very Preamble, of a life with dignity for
every individual in the country.
The number of manual scavengers in the country, according to the official statistics of the
Ministry of Social Justice and Empowerment of the Government of India, was 6,76,009 for
2002–03. The highest number was in Uttar Pradesh (1,49,202), followed by Madhya Pradesh
(80,072) and Maharashtra (64,785). But independent estimates indicate that there could be more
than one million manual scavengers in the country.
Section 7A (added in 1976) of the Protection of Civil Rights Act 1955 provides that whoever
compels any person on the ground of Untouchability to do any scavenging shall be deemed to
have enforced a disability arising out of Untouchability and, thus, punishable with imprisonment.
It was only four decades after the commencement of the Constitution that manual scavenging
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was specifically prohibited under the Employment of Manual Scavengers and Construction of
Dry Latrines (Prohibition) Act, which was passed by Parliament in May 1993 after it obtained
resolutions from the State Legislatures of Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura
and West Bengal under Article 252(1) of the Constitution. While the Act received the assent of the
President in June 1993, it took almost four years (January 1997) for the issue of the notification
to bring the Act into force in these six states and all Union Territories. The remaining states were
expected to adopt the Act by passing resolutions under Article 252(1), but the legislation is yet to
become applicable countrywide. Some of the states have not adopted the law on the ground that
there were no manual scavengers in their domain, despite evidence to the contrary.
The Preamble to the Act states:
Whereas fraternity assuring the dignity of the individual has been enshrined in the Preamble
to the Constitution…and whereas the dehumanising practice of manual scavenging of human
excreta still continues in many parts of the country…and whereas it is necessary to enact
a uniform legislation for the whole of India for abolishing manual scavenging by declaring
employment of manual scavengers for removal of human excreta an offence and thereby ban
further proliferation of dry latrines in the country.
However, the content of the Act shows that emphasis has been placed more on sanitation rather
than on the human dignity of the manual scavengers. In fact, the Act ignores the issue of human
dignity mentioned in its own Preamble. Section 3(1) requires the state governments to issue a
notification for an area and with reference to a date. And thereafter, no person shall:
(a) engage in or employ for or permit to be engaged in or employed for any other person for
manually carrying human excreta;
(b) construct or maintain a dry latrine.
Section 3(2) lays down that the state government shall not issue a notification under subsection (1) unless:
(i) it has, by notification given not less than 90 days notice of its intention to do so;
(ii) adequate facilities for the use of water seal latrines in that area exist; and
(iii) it is necessary or expedient to do so for the protection and improvement of the environment
or public health in that area.
It is to be seen that by making the existence of adequate facilities for use of water seal latrines a
precondition, Section 3(2) makes it virtually impossible to abolish manual scavenging. Clause (iii)
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makes the protection and improvement of environment and public health the criteria, not the
human tragedy of the manual scavenger. This entire Section appears misconceived and goes completely contrary to the very objective of the abolition of the dehumanising practice of manual
scavenging. Further, Section 4 provides for exemptions from the Act, which, in effect means
exemption from human dignity guaranteed under the Constitution. In Section 17, previous
sanction of the Executive Authority is needed for prosecution, and cognisance of an offence can
be taken only on a complaint made by a person authorised by the said Executive Authority. It
denies the individual the wherewithal to file a complaint directly. Section 18 places a limitation of
three months for making a complaint. All these limiting provisions in the law itself serve to make
it ineffective. There have so far been very few prosecutions under the Act.
There is yet another piece of legislation—the National Commission for Safai Karamcharis Act
1993, which was enacted in September that year—under which a National Commission for Safai
Karamcharis has been set up. Strangely, the Act itself laid down in Section 1(4) that it would cease
to have effect after 31 March 1997 (putting on paper its ‘date of demise’, as aptly described by
Upendra Baxi), thus necessitating amending Acts and Resolutions from time to time to extend
its validity and term of office of the Commission. Under Section 8 of the Act, the function of the
Commission is to recommend to the Central government specific programmes of action towards the
elimination of inequalities in status, facilities and opportunities for safai karamcharis under a timebound action plan; study and evaluate the implementation of programmes and schemes relating to
social and economic rehabilitation of safai karamcharis and make recommendations to the Central
and state governments; investigate specific grievances, including the non-implementation of the
law in its application to safai karamcharis, and take up the matter with the concerned authorities.
It has also been provided that the Central government shall consult the Commission on all major
policy matters affecting the safai karamcharis and that the Annual Report of the Commission is
to be placed before the Parliament. The Act has conferred no powers at all on the Commission
except that of calling for information, thus reducing the Commission to an advisory body bereft
of any real authority. As a result, this legislation has had very little impact on the conditions of the
manual scavengers in the country.
A brief reference may be made to a Public Interest Litigation (PIL) in the form of a Writ Petition
filed in the Supreme Court of India in 2003 by the Safai Karmachari Andolan (a movement for the
elimination of manual scavenging) and 18 other organisations and individuals. It was submitted
before the Supreme Court that the existence of dry latrines in various parts of the country was
entirely illegal and unconstitutional, was an affront to human dignity and was in violation of the
fundamental rights enshrined in the Constitution, in particular, Articles 14, 17, 21 and 23. The
Supreme Court was requested to issue time-bound directions to the Union of India and various
states to take effective steps for the elimination of manual scavenging simultaneously with the
formulation and implementation of comprehensive plans for the rehabilitation of all persons
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employed as manual scavengers, as well as for the effective implementation of the Employment of
Manual Scavenging and Construction of Dry Latrines (Prohibition) Act 1993.
It took almost three years and strong admonitions from the Supreme Court to secure a response
from the state governments and the Central government in the form of detailed affidavits. Many of
the state governments denied the existence of the practice of manual scavenging. Several affidavits
and counter-affidavits showing the existence of dry latrines and manual scavenging have been filed
before the Court. The issue is still before the apex court pending its directions.
During a campaign undertaken by the Safai Karmachari Andolan in various states, it was found
that there were a large number of community dry latrines maintained by the state or local bodies
who employed manual scavengers in violation of the law. An interesting case was that of a dry
latrine which was in existence in the premises of the Court of the Junior Civil Judge in Yellareddy
(a town in Nizamabad district in Andhra Pradesh) and the employment by that court of a manual
scavenger, both being in clear violation of the mandatory provisions of the Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act 1993. When this fact was brought
to public knowledge by the Safai Karmachari Andolan, which had taken up a campaign for the
demolition of dry latrines, the District Judge, instead of directing the demolition of the dry latrine,
issued a notice for initiating disciplinary action against the part-time manual scavenger for reportedly
assisting in the effort to demolish the dry latrine. The dry latrine was demolished by the Court
only after the matter was brought to the notice of the Supreme Court, during the hearing of the
Writ Petition. Such instances will only go to show the lack of respect for law even on the part of
public authorities. It is unfortunate that even today, apart from private households, organisations
of the Central government, especially the defence establishments and Indian Railways, as well as
the local bodies under the state governments such as municipal and panchayat institutions, are
themselves major employers of manual scavengers.
LAW ON SLAVERY (1843) TO BONDED LABOUR (1975)
Slavery was widely prevalent in India even by the middle of the 19th century and labourers were
being sold as a commodity. Almost every administrator who went to Malabar in the early 19th
century reported on the rigours of slavery and the wretchedness of the slaves. In 1801, Francis
Buchanan, who had undertaken a journey through the regions of Malabar, Mysore and Kanara
at the instance of Marquis Wellesley then Governor General of India, remarked that in South
Malabar, by far the greatest part of the labour in the fields was performed by slaves.11 Dharma
Kumar,12 in an excellent analysis, assessed that the proportion of slaves was about 15 per cent of
the population in Malabar and South Canara districts of the Madras Province in the middle of
19th century. Slavery, converging with landlessness and caste, was deep-rooted in Indian society.
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Agrestic slavery, in fact, compounded the disabilities of the lower castes, especially the Untouchable
communities. In 1819, the Board of Revenue of the Madras Province observed that it was averse
to slavery as such, but felt that ‘it would be obviously unjust to interfere with the private property
which the raiyats at present possess in their slaves; besides it must be dangerous to disturb the
long-established relations subsisting between these two orders’.
The British government did, indeed, initiate measures in the middle of the 19th century to
abolish slavery, although the Indian zamindars strongly voiced their opposition. Following the
publication of the draft Anti-Slavery Act in 1843, some zamindars and talukdars of Bengal (from
Sylhet district, now in Bangladesh), submitted in a memorandum to the government:
It (abolition of slavery) would tend to be the ruin of all India, specially that of the respectable
part of Sylhet. From time immemorial, slaves of both the sexes were engaged in the services of
respectable men and performed drudgeries of various descriptions. According to the Shastras and
customs of the country the slaves were alienable by sale purchase or gift…. If the proposed Act is
passed into law, the slaves would consider themselves men of respectability and would refuse to
perform duties which were habitually assigned to them.13
Slavery was finally outlawed by Indian Slavery Act (Act V of 1843). The possession of a slave
was made a criminal offence by Section 370 (buying or disposing of any person as a slave) and
Section 371 (habitual dealing in slaves) of the IPC 1860.
However, hereditary servitude institutionalised as bondage continued to be the condition of a
large proportion of agricultural labour. Utsa Patnaik14 describes the historical picture thus:
India is a country of survival and adaptation to new functions, of social forms which elsewhere
have become extinct. The various forms of subordination of one class of human beings by
another have not been swept away here by any revolutionary upheaval; on the contrary, their
characteristics have accumulated and mutated sometimes under the impact of capitalism to
produce an extraordinary amalgam of the modern and the archaic. While subordination and
bondage are characteristics of many aspects of social life, agrestic servitude has formed historically
the most important component. A consideration of the history of agrestic subordination of
one class by another inevitably becomes the history of the evolution of the class of agricultural
labourers in India.
Abject poverty often compels the agricultural labourer to resort to loans, usually from a landlord,
in kind or cash, often for subsistence or to meet expenses of marriage, medical expenses or customary
needs. In turn, the labourer undertakes to work for the creditor in order to pay off the debt.
His chances of repaying the debt are remote or virtually nonexistent because of the low wage he
receives and the fact that he has to work as captive labour and has no freedom to work with anyone
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other than the creditor. With usurious interest, it invariably leads to bondage for life; even for the
succeeding generation, being thus bonded becomes hereditary and, therefore, permanent. There
are also a large number of bonded labourers in brick kilns, stone quarries, limestone mines, match
factories, carpet-weaving factories, irrigation works and a variety of other occupations. Nearly 75 per
cent of the bonded labourers belong to the Scheduled Castes and the Scheduled Tribes.
Article 23 of the Constitution prohibited begar and other similar forms of forced labour
and declared that the contravention of the Article would be a punishable offence. This is, like
Untouchability, an offence created by the Constitution itself. There had been piecemeal legislations
in many parts of the country providing for the abolition of begar and forced labour. Strangely,
though, it was the proclamation of the repressive measure of Emergency in the country that gave a
spurt to the enactment of a national legislation on bonded labour in fulfilment of Article 23 of the
Constitution. Following the proclamation of Emergency, the then Prime Minister announced on
1 July 1975, ‘The practice of bonded labour is barbarous and will be abolished. All contracts or
other arrangements under which services of such labour are now secured will be declared illegal.’
This was, in turn, incorporated as the fourth point in the Twenty Point Programme that read,
‘Bonded Labour wherever it exists will be declared illegal.’
Accordingly, the Bonded Labour System (Abolition) Ordinance was promulgated on 25 October
1975 and was followed by the Bonded Labour System (Abolition) Act 1976 on 9 February 1976.
The Statement of Objects and Reasons to the Act described the situation existing in the 27th year
of the Republic of India:
There still exists in different parts of the country a system of usury under which the debtor or
his descendants or dependents have to work for the creditors without reasonable wages or with
no wages in order to extinguish the debt. At times, several generations work under bondage for
the repayment of a paltry sum which had been taken by a remote ancestor. The interest rates
are exorbitant and such bondage cannot be interpreted as the result of any legitimate contract
or agreement. The system implies the infringement of the basic human rights and destruction
of the dignity of human labour.
Article 23(1) of the Constitution prohibits ‘begar’ and other similar forms of forced
labour and further provides that any contravention of the said prohibition shall be an offence
punishable in accordance with law. Article 35(a)(ii) of the Constitution not only confers the
power on Parliament to provide for punishment for the contravention of the said provisions of
Article 23(1) but expressly takes away the power of the State Legislature to make any legislation
in regard to the said matter. Accordingly, the Bonded Labour System (Abolition) Ordinance
1975 was promulgated by the President on the 24th October 1975. By the said Ordinance, the
bonded labour system was abolished and the bonded labourers were freed and discharged from
any obligation to render any bonded labour and their bonded debts were also extinguished.
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The Ordinance further affords protection to the freed bonded labourers from eviction from
the homestead. Contravention of the provisions of the Ordinance have been made offences
punishable in accordance with law. Provisions for the follow up measures and economic
rehabilitations of the freed bonded labourers have also been made in the Ordinance.
The Bill seeks to replace the said Ordinance.
The Preamble to the Bonded Labour System (Abolition) Act mentions that the Act is to provide
for the abolition of the bonded labour system with a view to preventing the economic and physical
exploitation of the weaker sections of the people. The Act abolishes bonded labour system and frees
every bonded labourer, discharging the bonded labourer from any obligation to render any bonded
labour. The liability to repay any bonded debt is also extinguished. While authorising the state
governments to confer powers on District Magistrates, the Act also specifically lays down in Section
12 that it shall be the duty of every District Magistrate to enquire and take action to eradicate bonded
labour. Vigilance committees with the District Magistrate as chairperson have also been provided
for. Cases under the Act can be tried by Executive Magistrates. The Act provides for punishment of
imprisonment up to three years and fine up to Rs 2,000 for anyone who enforces bonded labour,
advances bonded debt or extracts bonded labour under the bonded labour system.
Although the Bonded Labour System (Abolition) Act speaks of a debtor–creditor relationship
and uses the term ‘debtor’ in Section 2(g), the definition has been widened by the rulings of the
Supreme Court in its well-known judgements in Peoples Union of Democratic Rights vs Union
of India15 known as the Asiad Workers Case and Bandhua Mukti Morcha vs Union of India16
by which a loan or debt is not necessarily a requirement for determining a bonded relationship
or bonded labour system. It has been held that the denial of minimum wages itself is enough to
show the existence of forced labour, and where a labourer is made to provide forced labour, he is
presumed to be a bonded labourer under the Act.
It is also necessary to note that the provisions of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act 1989 apply if the bonded labourer happens to belong to the Scheduled
Castes or Scheduled Tribes, as most of them do. Section 3(vi) of this Act lays down that:
…whoever compels or entices a member of the Scheduled Caste or a Scheduled Tribe to do begar
or other similar forms of forced or bonded labour…shall be punishable with imprisonment for
a term which shall not be less than six months but may extend to five years and with fine.
The identification, release and rehabilitation of bonded labour are issues of securing minimum human dignity and freedom, particularly for the Scheduled Castes and the Scheduled Tribes.
Section 12 of the Bonded Labour System (Abolition) Act casts a legal duty on the District Magistrate
to enquire into its existence and take steps to eradicate it. In practice, however, the work has been
largely left to the lower echelons of the administration, with little or no supervision or guidance.
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S.R. Sankaran
There has been a general tendency to deny the existence of bonded labour and a reluctance to
utilise the provisions of the law to secure freedom from bondage for labourers in agriculture as
well as in a variety of other occupations. The number of bonded labourers released in the country
since the enactment of the Bonded Labour System (Abolition) Act is about 3,00,000, although
surveys have shown a much higher incidence of bonded labour.
CONCLUDING OBSERVATIONS
Despite the Constitutional mandates, the making of the laws to remove the disabilities of the sociallyexcluded sections of the people has taken an unduly long time. While the Constitution declared the
abolition of Untouchability in 1950, the Untouchability (Offences) Act was promulgated in 1955,
five years later, and the PCRA was enacted only in 1976, 26 years later. The Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act was passed in 1989 but the Rules were framed in
1995, after a lapse of six years. The Employment of Manual Scavengers and Construction of Dry
Latrines (Prohibition) Act was enacted in 1993, but it was brought into force only in 1997, after
four years. While the Constitution proscribed bonded labour, it was 25 years later that the Bonded
Labour System (Abolition) Ordinance was promulgated in October 1975, followed by the Act in
1976. And all these legislations unfailingly cited the Constitutional provisions as the rationale for
the enactment! The long delays are an indication of the indifference, if not the antipathy, of the
dominant sections of the society towards giving up social control over people, and their interest
in perpetuating unequal social relations.
The laws favourable to the ‘have-nots’ or socially excluded groups are often weak. The
Untouchability (Offences) Act 1955 had to be reformulated as the PCRA in 1976 in view of its
deficiencies. As explained in detail earlier, the Employment of Manual Scavengers and Construction
of Dry Latrines (Prohibition) Act is an illustration of a legislation whose provisions serve to defeat
its very objectives. The National Commission for Safai Karamcharis Act 1993 set out its own date
of demise. Perhaps the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is
an exception, where the intention of the legislation is clearly and powerfully brought out in the
various provisions.
The laws contain not only punitive provisions but also preventive steps as well as relief
and rehabilitation measures. Although the PCRA, the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act as well as Bonded Labour System (Abolition) Act and the Employment
of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act are all Central laws, the
responsibility for their enforcement, like that for many Central laws, lies with the state governments.
The function of the Central government seems to end with the making of the laws, although
national level reviews, coordination and the provision of funds continue to be undertaken.
Social Exclusion and Criminal Law
139
It may be useful to examine the punitive actions or prosecutions taken up under these enactments
to assess their impact as deterrents to unlawful patterns of behaviour. There have been very few
prosecutions under the Bonded Labour System (Abolition) Act or the Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act. In regard to the other Acts, the total
number of crimes against the Scheduled Castes, including crimes under the IPC such as murder,
hurt, rape, kidnapping, robbery as well as crimes registered under the PCRA and the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act was 33,501 in 2001, 33,507 in 2002,
26,252 in 2003, 26,887 in 2004 and 26,127 in 2005.17
An analysis of cases registered under the PCRA shows that starting with 180 cases in 1955, when
the Untouchability (Offences) Act was enacted, the number reached about 5,100 around 1977,
when the PCRA came into force. It declined to 3,000–4,000 in the 1980s and 1,000–2,000 in the
1990s. It was less than 1,000 by 2000, 364 in 2004 and 291 in 2005. The number of registered
cases has shown a progressive decline over the years. The registration of cases of atrocities against
the Scheduled Castes shows that during the decade (1995–2005), about 1,00,000 cases of atrocities
were registered countrywide under the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities Act) 1989. The number of cases registered was about 15,000 in 1994 and there was a
declining trend during 1995–2000, when only about 7,300 cases were registered. However, the
number of registered cases showed an increase during 2001 to about 13,100, declining thereafter
to 8,048 in 2003, increasing again to 8,891 in 2004 and then decreasing to 8,497 in 2005.
The statistical picture indicates a deceptively declining trend in cases of Untouchability and
atrocities. In reality, it is more a reflection on the ineffectiveness in the implementation of the laws.
It is common knowledge that Untouchability continues to prevail in large parts of the country. A
glaring and most disturbing evidence of this is the inability of Tamil Nadu to conduct elections
to fill the posts of panchayat presidents reserved for the Scheduled Castes in four villages in the
state for almost a decade (1996 and 2001 elections) due to resistance from the upper castes.
A sample study done in Andhra Pradesh in 2003 showed that only in 17 per cent of cases do
the police register a case under the correct provisions of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, and fewer than 5 per cent of the cases were followed up by
chargesheets. A study of the judgements of the courts showed that the spirit of the legislation has
not been properly appreciated even by the higher courts, and that more than 75 per cent of the
cases ended in acquittal.18
The initiative to implement the laws effectively has to come from the State, as the power to
prosecute and punish under the law is vested in the State’s agencies alone. But there is very little
inclination on the part of the local administrations, especially the police and the local magistrates,
to implement the law as they are disinclined to antagonise the dominant elements of local
community. Initiative from the members of the Untouchable communities themselves can be
forthcoming, which has no doubt happened in some cases. But a large majority of the people,
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S.R. Sankaran
suffering from severe social disabilities, perceive little advantage in instituting cases under the
law as they are vulnerable to intimidation and reprisal and are economically dependent on the
upper castes, who often look upon these laws as irritants. The recent emergence of activist groups
and political leadership among the Scheduled Castes community has made some—though only
marginal—difference to the situation.
Untouchability, in particular, is an issue that evokes little attention from administrators or
political leaders. Further, while the law has equal access as its aim, the political and administrative
actions often serve to provide for separate facilities, thus offering a remedy that is conceptually of
a different order than what is contemplated by the law. This can be easily seen from the existence
of segregated habitations of Scheduled Caste people all over rural, or even urban, India.
Notwithstanding the shortcomings, the enactment of these laws and their implementation,
even if limited, has helped in reducing the rigour of social exclusion and discrimination. Perhaps
a significant gain is with regard to the self-image of the excluded people, who perceive State action
on their behalf as legitimating their claims to be free of invidious treatment. It puts the imprimatur
of prestigious administrative authority upon a set of values which are an alternative to prevailing
practice, thus presenting a challenge to social life based upon hierarchic caste values.19
The people of India have given unto themselves the Constitution with the overarching values
of equality, justice, liberty and fraternity. The laws for eliminating Untouchability and curbing
atrocities, or the laws for the abolition of bonded labour or the eradication of manual scavenging
are part of the legal developments to achieve these values in an otherwise hierarchical society that
is yet to imbibe these values. This legal pursuit appears to be unending.
NOTES & REFERENCES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Berreman, Gerald D. 1963. Hindus of the Himalayas. Berkley: University of California Press.
Geetha, V. and S.V. Rajadurai. 1999. Towards a Non-Brahmin Millennium, p. 57. Calcutta, Samya.
Indian Statutory (Simon) Commission 1930: V, 1341.
Galanter, Marc. 1984. Competing Equalities, Law and the Backward Classes in India. Delhi: Oxford University
Press.
35 I.A.C. 176 (1908).
AIR 1945 Madras 232.
AIR 1924 Nagpur 121.
Ksirsagar, R.K. 1989. Untouchability in India. New Delhi: Deep and Deep Publications.
AIR 1958 Mysore 84.
Baxi, Upendra. 1994. Mambrinos Helmet? Human Rights for a Changing World. Delhi: Har Anand.
Buchanan, Francis. 1807. A Journey from Madras through the Countries of Mysore, Kanara and Malabar. London.
Republished, Buchanan, Francis. 1870. A Journey from Madras through the Countries of Mysore, Kanara and Malabar.
Madras: Higginbotham.
Social Exclusion and Criminal Law
141
12. Kumar, Dharma. 1992. ‘Caste and Landlessness in South India’, in Gyan Prakash (ed.). The World of the Rural
Labourer in Colonial India. Delhi: Oxford University Press.
13. Cited in Dingwaney, Manjari. 1985. ‘Unredeemed Promises, The Law and Servitude’ in Utsa Patnaik and Manjari
Dingwaney (ed.). Chains of Servitude Bondage and Slavery in India, p. 311. Hyderabad: Sangam Books (Orient
Longman).
14. Patnaik, Utsa and Manjari Dingwaney (ed.). Chains of Servitude Bondage and Slavery in India. Hyderabad: Sangam
Books (Orient Longman).
15. AIR 1982 SC 1423.
16. AIR 1984 SC 802.
17. Government of India, Ministry of Home Affairs, National Crime Records Bureau, Crime in India 2005.
18. Dalit Human Rights Monitor. 2003. Sakshi Human Rights Watch, Hyderabad.
19. Galanter, Marc. 1989. Law and Society in Modern India. Delhi: Oxford University Press.
6
Building a Subaltern Women’s Perspective
Jayshree P. Mangubhai and Aloysius Irudayam S.J.
In India, a country of pervasive inequalities and systemic discrimination based on gender, caste/
ethnicity and class, crime control and criminal justice are heavily conditioned by social factors that
shape the prevalence, nature, forms and causative factors of crime. Certain sections of society, the
subalterns—Adivasis and Dalits, particularly women of these communities—are denied power,
resources and agency, and are excluded from mainstream society, solely on the basis of their ascribed
‘low’ social status. In the same manner that social hierarchies of caste/ethnicity, class and gender distribute socio-economic and political power unequally, denying power and resources to those deemed
to lie at the bottom of these hierarchies, so, too, does the perpetration of crime on those at the bottom
of the social hierarchies increase while their access to criminal justice correspondingly decreases.
In recognition of this social reality, Article 46 of the Indian Constitution articulates the State’s
duty to protect the weaker sections of the population, in particular the Scheduled Castes (Dalits)
and the Scheduled Tribes (Adivasis), from social injustice and all forms of exploitation. Special
criminal laws and procedures, crime prevention cells and courts are set up in fulfilment of this State
obligation. Criminal justice, which aims to maintain social cohesiveness, therefore, encompasses
two sets of measures: punitive procedures applicable to everybody; and specific remedial measures
that aim to protect the recognised socially-excluded sections of society and integrate them into
the mainstream.
People-centred governance, of which crime control and punishment laws and policies are
an important component, requires that such laws and policies are responsible, responsive,
transparent, participatory and accountable to the people.1 Correspondingly, human rights are
now recognised as a key constituent element of governance, involving both the fair allocation
of material resources and the establishment of normative standards of behaviour in civil society.
People’s growing awareness of their rights, as well as the increasing relevance of these rights to
building humane communities, argue in favour of governance that is rights-based. To adopt a
human rights perspective, moreover, is to focus on the situation of the most marginalised sections
Building a Subaltern Women’s Perspective
143
of society on both legal and moral grounds. The litmus test for the effectiveness of the current
criminal justice system (CJS), therefore, becomes its ability to deliver legal protection and justice to
the most socially marginalised and vulnerable sections of society: these are the approximately 100
million Adivasi and Dalit women who together constitute 12 per cent of the Indian population.
In reality, however, a culture of violence and impunity, which is an intrinsic part of the parallel system of caste underwritten by patriarchal norms, vitiates the impact of the rule of law and
legal norms, rendering its own form of criminal justice and punishment implicitly weighted against
subaltern citizens. Effectively combating this counterculture, then, demands an increasing recognition of rights-based, subaltern-sensitive governance as the cornerstone of the CJS.
DISCRIMINATORY CONTEXTS
Crimes targeting Adivasi and Dalit women and their communities are not static but have adapted
and grown with emerging socio-economic and political trends. One such trend is state policies
that promote the market economy, resulting in the feminisation and casualisation of labour. The
alienation of Adivasi lands and the destruction of Adivasi women’s forest livelihoods in the process
of commercialisation of forests and other natural resources have, for example, forced many of these
women into low-wage casual labour. The mechanisation of agriculture, likewise, pushes out marginal
farmers and produces a surplus of daily-wage agricultural labourers; many of them are Adivasi and
Dalit women who then must diversify into further casual labour or work longer hours in the farms
of others doing hard labour—weeding, transplanting, and so on—which is traditionally allotted to
women and escapes mechanisation. The consequences for both Adivasi and Dalit women extend
not only to low wages and poor working standards, but often also to sexual harassment and other
forms of violence in the workplace.
Another recent trend is the rise of nationalistic fundamentalism, which simultaneously reinforces
the low status of Adivasi and Dalit women through its religious dogma and co-opts them into
communal crimes. The communalisation of these two communities seeks to manipulate their
poverty and social exclusion by offering them illusory social recognition and acceptance at the
cost of their distinct identities, cultures and traditions. In the process, the ascribed social standing
of Adivasi and Dalit women, both as women and as ‘low caste’, is reified in distinction to ‘highcaste women’.
Related to, and benefiting from, the two trends is a third one, namely the accelerated upward
mobility of the dominant castes2 in terms of economic resources and political power. The
benefits of current globalisation-driven schemes of trade liberalisation and privatisation, coupled
with nationalistic fundamentalism, do not trickle down to Adivasi and Dalit women and their
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communities, but instead remain in the hands of vested dominant caste interests. This is because
their ‘low’ caste/ethnic and gender identities restrict freedom of choice and access to resources,
opportunities and participation in livelihood-building activities and social mobility. This process
ensures that subaltern women are prevented from enjoying their due share of resources and
development as equal citizens. When they make demands on the system, a backlash of violence is
inevitable. Overall, the patriarchal system is reinforced and thereby women’s vulnerability to acts
of criminal force by multiple state and non-state actors is accentuated.
As a result, crime rates against subaltern women are increasing. The Parliamentary Committee
on the Welfare of Scheduled Castes and Scheduled Tribes noted that ‘women belonging to these
[scheduled] castes and [scheduled] tribes bore a double burden. They were exploited by caste and
gender, and were vulnerable to and powerless against sexual exploitation.’3 Similarly, the National
Commission for Scheduled Castes and Scheduled Tribes (NCSCST) stated that while the annual
average of reported crimes against Dalit communities had stayed at 25,000 per year, there was a
substantial increase in the ‘heinous crimes of rape and murder’ committed on the members of the
Scheduled Castes.4 The same Commission also noted that:
…it is of great concern and regret that in our society, its weakest and vulnerable segments continue to suffer from discrimination, exploitation and atrocities. Despite provisions for removal
of disabilities and discrimination against SCs and STs provided in the Constitution of India,
incidents of atrocities on members of SCs and STs continue to be reported from all parts of the
country in differing numbers.5
At the same time, countertrends have emerged as well. As more Indian citizens become
progressively informed of their democratic rights, expectations of rights-based governance
increasingly play into the field of criminology. Dalit individuals, movements and organisations
are increasingly demanding recognition and protection of their rights against caste discrimination
and violence. For instance, a public interest litigation is currently pending before the Supreme Court
regarding the lacunae in the implementation of the Scheduled Castes/Scheduled Tribes (Prevention
of Atrocities) Act 1989.6 This petition is based on the social audits done of the Act by the National
Human Rights Commission (NHRC), the Justice K. Punnayya Committee, the NCSCST and
non-governmental organisations such as Sakshi–Human Rights Watch, the National Campaign
on Dalit Human Rights (NCDHR) and the Centre for Dalit Rights (CDR), indicating 20 main
failures in the implementation of the Act. The Supreme Court has sent notices (on 4 April 2006)
to all state and Union Territory governments, the NCSCST and the NHRC, directing them to
submit status reports on the execution of this law.
Meanwhile, agitations across the country by Adivasis and supportive movements and
organisations resulted in the enactment of the Provisions of the Panchayats (Extension to the
Building a Subaltern Women’s Perspective
145
Scheduled Areas) Act 1996. This Act of Parliament sets a framework for Adivasi internal self-rule
in Constitutionally-mandated ‘protected areas’, where cultural protection and control over resources
should flourish to ensure social justice. Research on the manifold rights violations occurring against
Adivasi communities has provided evidence of the negligence of some state legislatures in enacting
appropriate laws to effect internal self-rule for Adivasis; for example, the state government of
Tamil Nadu has not, to date, demarcated any areas in the state as ‘protected areas’ for the state’s 36
Adivasi communities under Schedule V of the Indian Constitution 1949 to allow the passage of
legislation in line with the 1996 Act, despite repeated representations by Adivasi movements and
civil society organisations espousing the Adivasis’ cause. This has been compounded by the failure
of the police to enforce existing legislation protecting Adivasi rights from racial discrimination
linked to widespread economic, social, cultural, civil and political rights violations. Consequently,
Adivasis have been pushed to increasingly taking matters in their own hands in order to protect
themselves from crimes.
The findings of a study on atrocities against Adivasis in Tamil Nadu illustrated this point.7
Focus group interviews were conducted in 100 Adivasi villages across Tamil Nadu, exploring a
wide range of human rights violations that had occurred in the villages from 1990 to 2000 since
the enactment of the SC/ST (POA) Act 1989. One specific area of inquiry was gender rights violations, including gender violence against Adivasi women in the villages. This research brought
to light certain instances wherein Adivasis had evolved their own protection mechanisms when
faced with violence relating to safeguarding their land from illegal occupation by non-Adivasis,
accessing work opportunities, potable water, education and transport facilities, and defending the
Adivasi women’s sexual integrity. Given the prevalence of sexual exploitation of Adivasi women
in all the 10 districts/areas covered by the study, and the often indifferent attitudes of the law and
order machinery to registering crimes committed against Adivasis, the Irulars of K. Morur village
in Salem district and several villages in Kodaikanal taluk of Dindigul district reported having
adopted their own security measures to ensure the safety of their women.
For example, the Irular men of K. Morur village stayed with the women as much as possible,
whether at work or in and around their village. In a similar manner, in Kodaikanal taluk, the youth
club members in Pulathur village stayed close by and kept watch over young Adivasi women who
were working in the fields. As a result, estate or farm managers and supervisors were much more
cautious about exploiting the women. In Vellarikarai village, the women took a collective decision
to stop working in the estates and chose, instead, to find employment in the farms, where there was
less sexual exploitation. And for one to two years in Bharathi Anna Nagar, all the women slept in
the same hut surrounded by Adivasi men primed to ward off any attacks from non-Adivasi men.
These two sets of contrasting trends beg several questions: If the science of criminology is to be
relevant to the citizens in a polity, should it not be a discipline which allows for changing contexts
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Jayshree P. Mangubhai and Aloysius Irudayam S.J.
to mould its concepts and tools? How can the field of criminology match up to the challenges
thrown open by emerging new contexts, broadening its understanding of crime and crime control
in the country to focus on certain vulnerable categories of people such as subaltern women in line
with Article 46 of the Indian Constitution? How can a human rights perspective be integrated
into criminology, expanding the field beyond crime control and criminal law administration? In
the process, should criminology refocus itself on crime prevention by analysing these contexts for
specific vulnerable ‘victim’ groups and their implications for law and order, so as to integrate its
analysis into social and legal policy?
CRIMINAL JUSTICE: CRITIQUE FROM A SUBALTERN WOMEN’S
PERSPECTIVE
A key reason for the failure of the CJS to deliver justice to Dalits and Adivasis is that it currently
operates on the premise of formal equality between women and men of all castes/ethnicities in
terms of crime control and punishment, as invariably measured against a dominant caste–class male
yardstick. In other words, while criminal law and procedures are posited as ‘objective’ standards
equally applicable to all, in reality there is an inherent ‘subjective’ viewpoint built into the CJS that
has a hidden caste/ethnic and gender bias. This focus on formal equality also tends to obscure the
underlying unequal gender and caste/ethnicity power relations and subaltern women’s subordination
informed by patriarchal and casteist ideologies and institutions. This social inequality and systemic
discrimination is manifested in the production and sustenance of individual biases and prejudices
in society against subaltern women, and socio-economic impoverishment which renders subaltern
women vulnerable to crimes while simultaneously denying them equality of voice in public affairs
and security of life as both individuals and as a group. It is also manifested in the effective denial
of equal access to the protection of the law, and to legal remedies where crimes take place against
subaltern women.
Systemic discrimination against subaltern women is evidenced by mass social and economic
rights violations, which form the context for crimes specifically targeting these women. Their caste/
ethnicity and gender-devalued social identity factors into their low education levels, lower wages
as compared to their male counterparts, lack of access to land ownership and lack of free and independent employment, with a sizeable number of women being daily-wage labourers dependent
on the dominant castes for their livelihood. The lack of socio-economic power ties in with a lack
of civil and political freedoms, in that the denial of rights to resources and social capital often
predicates the inability to assert a powerful voice in demanding rights or to establish adequate
social contacts to foster development among their communities.
Building a Subaltern Women’s Perspective
147
International research has pointed to the links between poverty, vulnerability and violence against
women, with the dominant risk factor being female.8 Add a socially excluded identity such as Dalit
or Adivasi into the equation and these links become stronger. In other words, subaltern women’s
socio-economic vulnerability and lack of political voice, when combined with the dominant risk
factors of being Dalit/Adivasi and female, increase their exposure to potentially violent situations
while simultaneously reducing their ability to escape. For example, when the lack of basic socioeconomic rights is questioned, or explicitly or implicitly resisted by subaltern women—as in
the case of opposing the appropriation of their land, or such daily activities as collecting forest
produce or water that are undertaken predominantly by women—physical, verbal and/or sexual
violence often erupts to suppress women’s voices and freedoms.
Criminology, however, stresses civil and political rights to the detriment of socio-economic
rights, ignoring the fact that the two sets of rights are interlinked. This can be seen in the number
of socio-economic-related atrocities—social boycotts, denial of access to common property
resources, denial of employment rights (including wages), denial of access to economic development opportunities such as the right to operate small businesses—that do not find mention under
the SC/ST (POA) Act 1989. Moreover, by dissecting a crime into its constituent elements required
to establish proof of guilt beyond reasonable doubt, often the socio-economic background of the
crime and the unequal power relationship between the perpetrator and Dalit or Adivasi female
‘victim’ becomes obscured.
Thus, a crime of physical assault may be assessed as such, and bail granted to a perpetrator,
without adequate consideration of the issues surrounding the crime, such as the perpetrator
appropriating a Dalit or Adivasi woman’s land so as to deny her livelihood, or her dependence on
the perpetrator and his/her caste for employment, or the increased possibility of the perpetrator
threatening or committing further violence on the woman due to the socio-political power exerted
by the perpetrator over his/her subaltern woman ‘victim’.
In a similar manner, allegations that Dalit and Adivasi women misuse the special criminal
laws enacted for their benefit by filing false cases under the SC/ST (POA) Act 1989 often automatically penalise the concerned woman without delving into what pressures may have been
brought to bear on her by others in her social milieu. These pressures are most often a product
of her poverty and/or economic dependence on others for her livelihood. That is, taking advantage of a subaltern woman’s circumstances, a dominant caste person then manipulates this law by
coercing the woman into being a pawn to exact revenge on another dominant caste through false
cases of rape or other crimes. The true ‘victim’, therefore, becomes concealed within the narrow
ambit of police and judicial inquiries acting on the face of the facts presented to prove the elements
of a case.
For example, the cover title for the 4 May 2003 issue of The Week national magazine read ‘Rape
Racket’. The cover story exclusive entitled ‘Rewards of Rape’ and several other articles sought
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Jayshree P. Mangubhai and Aloysius Irudayam S.J.
to portray Dalit women as filing numerous false cases under the SC/ST (POA) Act 1989 in order
to receive monetary compensation and exact revenge on others. Reading through the articles, however, revealed a different view of open caste manipulations by dominant caste villagers coercing
Dalit women who were socially or economically dependent on them into filing these complaints.
Without attempting to undertake a caste- and gender-based analysis as to the reasons behind
such alleged trends, the articles merely entrenched a biased viewpoint that Dalits have turned
manipulators of the special law enacted to protect them, ignoring, in the process, how these women
were the true ‘victims’ whose voices did not appear in the articles. The damage done to both subaltern
women and the laws designed to specifically protect them is significant in terms of reinforcing
stereotypes and biases that subalterns are ‘criminals’ and ‘liars’ who do not deserve special protection.
In doing so, the ubiquitous nature of crimes occurring against subaltern women, which never see
the light of justice or public condemnation, is obfuscated.
The focus of criminal law on individual instances of crime and interventions on the occurrence
of crime, as a result of the inbuilt thrust towards primarily maintaining law and order, also
overemphasises the perpetrator–victim relationship as that between individuals rather than as that
between collective entities in a system. Adivasi and Dalit women’s collective and intersectional
identity as Adivasi/Dalit and women is central to their experiences of lack of freedom from
discrimination and fear of violence. In other words, the identity and well-being of the individual
members of the subaltern group is interlinked and interdependent with the devalued identity
and lack of security of life of the group. To solely concentrate on the individual perpetrator’s
intentions vis-à-vis the subaltern woman ‘victim’ of a crime that is to be objectively established with
evidence is to mask how her collective or group identity influences the perpetrator’s perspectives in
terms of the feasibility of carrying out the crime; that is, the perceived availability and accessibility
of the subaltern woman for criminal acts. Her group identity also influences the perpetrator’s
consideration of the absence of legal and moral repercussions for the crime: the lack of moral
repercussions stems from the disproportionate punishments sanctioned or socially legitimised
under the caste system for Dalit women who stray from caste norms that dictate submissive and
servile behaviour; by contrast, the lack of legal repercussions derives from the socio-political
power of the dominant caste groups to prevent crimes against Adivasi and Dalit women from
even reaching the public eye.
The concentration on legally and procedurally scripting post-crime responses also ignores the
wider social problems that feed the cycle of crime. These include systemic failures in educating
and enabling subaltern women to understand their legal rights, how to access and navigate the
CJS, how to access remedies for crimes—including where they encounter discrimination within
the CJS itself—and in ensuring protection mechanisms to prevent crimes against these women.
Guaranteeing an understanding of legal rights is part of the process of achieving substantive equality
Building a Subaltern Women’s Perspective
149
in terms of a comprehensive response to crime control and criminal justice serving and protecting
equally all citizens as its outcome. In the absence of such measures, the CJS, as it currently stands,
posits de jure rights to legal remedies as sufficient dispensation of obligations under the rule of law,
and turns a blind eye to the denial of many subaltern women’s de facto legal rights.
JUSTICE PROMISED, BUT NOT DELIVERED
In this regard, one needs to critically reflect on the Scheduled Castes/Scheduled Tribes (Prevention
of Atrocities) Act 1989, enacted by Parliament in recognition of the fact that Dalits and Adivasis are
specifically vulnerable to certain crimes9 due to their caste/ethnic group identity and, hence, require
special protection with stringent penalties affixed for crimes under this Act. In other words, an attempt has been made by lawmakers to ensure that the CJS delivers substantive justice to Adivasi
and Dalit ‘victims’ of extreme violence, in recognition of the historical and structural discrimination
and ensuing violence they have faced from the dominant castes. The term ‘atrocity’, according
to the Ministry of Home Affairs, Government of India, implies offences under the Indian Penal
Code, (IPC) 1860 perpetrated against the Scheduled Castes and Scheduled Tribes by persons not
belonging to either community, where caste/ethnic consideration is really the root cause of the
crime even though caste/ethnic consciousness may not be the immediate motive for the crime. This
has been certainly a positive step forward for Indian criminology in terms of widening the scope
of criminal justice to include specific focus on vulnerable social groups, and utilising stringent
penal provisions in an attempt to stem the tide of atrocities against these two communities and to
change negative social attitudes towards them.
However, as previously mentioned, the SC/ST (POA) Act, 1989 has also been criticised for
delimiting the definition of atrocities by not including socio-economic crimes such as social
boycotts, or massacres or Untouchability practices within its ambit. While the Protection of Civil
Rights Act 1955 enumerates a number of Untouchability practices that invoke legal penalties,
this Act has been criticised for its lack of stringent penalties and is rarely applied to the innumerable
illegal Untouchability practices that continue to exist today. Hence, the call for Untouchability to
be prescribed and punished as an atrocity under the SC/ST (POA) Act, 1989 becomes relevant
in order to provide adequate deterrence to these continuing practices. From a subaltern gender
perspective, the SC/ST (POA) Act, 1989 can be criticised for referring only to two specific gender
atrocities—sexual assault and sexual exploitation of Dalit and Adivasi women. Other forms of
sexual violence are only covered by the IPC 1860 while sexual violence inherent in the devadasi
or jogini system of ritualised prostitution, the overwhelming majority of victims being Dalit girls
and women, is covered only by state devadasi system abolition acts and is not explicitly defined
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as an atrocity. Targeted and punitive attacks on women as means of punishment of their Dalit
community, a fact increasingly being recognised today, also arguably warrant a separate penal
provision under the Act.
Moreover, currently, a number of legal and political strategies have been employed by those
wielding state- or caste-derived power to effectively defeat the purpose of the Act. For example,
the lack of implementation of this law is widely reported by a number of government and nongovernment agencies, and even has been alluded to by various United Nations committees and
officials.10 The aforementioned PIL before the Supreme Court elaborates 20 main failures with
regard to the implementation of the Act, which are:
(1) ‘victims’ are deterred from making complaints of atrocities and, as a result, FIRs are rarely
registered or registered late;
(2) FIRs are registered without reference to proper sections of the Act;
(3) chargesheets in atrocity cases are invariably filed late;
(4) the accused in atrocity cases are invariably not arrested and allowed to roam free;
(5) ‘victims’ are deterred by police colluding with accused persons in filing false counter
cases;
(6) compensation under the Act is invariably not paid;
(7) schemes for social and economic rehabilitation of the ‘victims’ are not framed in most
states and not implemented;
(8) ‘victims’ and witnesses invariably are not paid allowances under the Act for travel, and so
on during investigation and trial;
(9) investigations are invariably done in a shoddy fashion;
(10) investigations are often not done by the Deputy Superintendent of Police but by junior
officers, rendering the trial illegal;
(11) collective fines are never imposed even in serious cases;
(12) declaration of areas as atrocity-prone is hardly ever done;
(13) the accused are invariably released on bail even in cases of serious crimes;
(14) preventive steps as specified in the Act are hardly ever taken;
(15) SC/ST protection cells, nodal officers, special officers are not appointed;
(16) cases are underreported on a large scale;
(17) ‘victims’ are invariably forced to compromise on threat of social/economic boycott;
(18) the Central government reports are not being submitted to Parliament as required by
Section 21(4) of the Act;
(19) the performance of Special Public Prosecutors is poor;
(20) and the Vigilance and Monitoring Committees are ineffective.
Building a Subaltern Women’s Perspective
151
As a result, the rate of conviction under this Act in the country is less than 1 per cent.
Compounding this situation is the tendency for subaltern women’s complaints of violence to
be placed before traditional, or caste panchayat, processes for adjudication, in which the voices of
women and Dalits are often systematically suppressed under patriarchal and dominant caste notions
of social and moral justice. Despite this, no legislative or policy measures have been promulgated by
the State to ensure that subaltern women are educated about and have greater access to their legal
rights as an alternative means to ensuring fair and just remedies for crimes, as well as penalising
village panchayat members who force women into accepting ‘compromises’ that include little or
no justice, or that substitute monetary compensation for justice.
In addition, police tend to file cases of atrocities against Dalit or Adivasi women under the
ordinary IPC provisions and not under the more stringently penalising SC/ST (POA) Act, 1989,
or, if the latter Act is utilised, only the least stringent Section 3(1)(x)—verbal abuse and intimidation
in public, including using caste name—is registered. This situation has been made worse, for
example, by the Government of Uttar Pradesh, which promulgated Government Order No.
92MM/6-Po.-3-2002-25P/2002 in 2002, which stated that all crimes against Scheduled Castes and
Scheduled Tribes should be reported only after verification. Instances of rape would be recorded
only after being established through a medical report, and only ‘serious’ matters such as murder
and rape would invoke provisions of the SC/ST (POA) Act, 1989.
Even where cases are registered, inadequate or improper investigations and collecting of evidence
for cases by the police, coupled with acceptance of bribes to prevent the women’s cases from reaching
the courts, often result in cases being dismissed by the courts for lack of prima facie evidence of the
crime, or due to procedural lapses in investigations. In other words, there are a number of ways in
which police officials, as the key mediators of justice for subaltern women, fail in their duties as
agents of the State to exercise due diligence in investigating the women’s cases.
The lack of appreciation of group identities by the CJS is also illustrated by the tendency of
the Indian courts to narrowly interpret the SC/ST (POA) Act, 1989 as requiring evidence that an
atrocity was committed because a woman is a Dalit or Adivasi. The Act itself creates an anomaly
by stating that while the perpetrator need not be aware of the Scheduled Caste or Scheduled Tribe
status of the ‘victim’, nor be motivated by caste discrimination or prejudice for the provisions
of the Act to be applicable, Section 3(2)(v) is only applicable if the IPC offence is committed
against a Scheduled Caste or Scheduled Tribe member on the ground that such person is a member
of a Scheduled Caste or a Scheduled Tribe, or that such property belongs to such member. Caste-based
motives for violence are very difficult to prove, and it is arguable that no justification exists for
raising the burden of proof for this one section of the Act. Enough examples also exist of courts
dismissing Dalit and Adivasi women’s complaints of sexual violence, in particular, or dismissing
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the SC/ST (POA) Act, 1989 provisions on the grounds that such violence did not take place due
to their caste/ethnic identity.11
For example, a petition has been filed before the NHRC against a First Additional Sessions
Judge of the Kurnool District Special Court in Andhra Pradesh who, during 1999, erroneously
dismissed 39 rape cases filed against Dalit women and girls under Section 3(2)(v) and some under
Section 3(1)(xii) SC/ST (POA) Act, 1989. It was petitioned that by exhibiting his caste bias and
misreading the letter and spirit of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities)
Act 1989, the learned judge dismissed all cases by alleging that they had been committed not on
the basis of caste, but for reasons such as sexual lust or revenge.12 Similarly, in Naresh vs State of
Haryana,13 the Haryana High Court modified the judgement of the Additional Sessions Judge
and held that charges under Section 3(2)(v) Scheduled Castes/Scheduled Tribes (Prevention
of Atrocities) Act 1989 could not be sustained as the offence (rape of a minor 12-year-old girl
Kumari Sunitha by dominant caste Naresh) was not committed with a view to cause injury,
insult or annoyance to any member of a Scheduled Caste or Scheduled Tribe. Accordingly, only
the sentencing under the IPC was sustained and the sentence reduced from life imprisonment to
seven years’ imprisonment with fine.
These judgements raise an important issue as to whether, in a society infused with systemic caste
discrimination, one can presume other than that a crime was done because the ‘victim’ belonged
to a Scheduled Caste or Scheduled Tribe. This would better match the legislative and executive
recognition that the term ‘atrocity’ implies offences committed due to caste consideration, even
though caste consciousness may not appear to be the immediate motive. In other words, the
necessary mens rea should be established with the offence itself and the communities to which
both ‘victim’ and perpetrator, respectively, belong, without any legal requirement that the main
ground for the offence be proved as Adivasi or Dalit identity. This would be in keeping with the
statement by Justice Ramaswamy in State of Karnataka vs Appa Babu Ingale that mens rea is not
essential in social legislation.14
In addition, large delays in the trial of atrocity cases can be attributed to the fact that Special
Courts set up under the SC/ST (POA) Act 1989 to ensure speedy trials of these cases have no
powers to directly take cognisance of atrocity cases; instead, committal of cases by Magistrates
to the Special Courts is required. While the present situation adds to the caseload of the already
overburdened regular court system and delays the trials before the Special Courts, this also allows
more time for the perpetrators of atrocities to effectively pressurise and/or intimidate the ‘victims’
and their relatives into withdrawing or compromising the cases. It is for this reason that the
NCSCST has recommended amendments to this Act in order to ensure that all offences under
the Act are cognisable and subject to summary trial.15
Building a Subaltern Women’s Perspective
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TWO CRITICAL ISSUES
A key reason for the lacunae in understanding that there are different levels of vulnerability to
crime across the social strata rests on the lack of attention paid by criminal law to the subaltern
women victim-survivors of crime: to their specific social, economic and political context and
consequent vulnerability to crimes, to their rights that have been violated, to issues of power and
authority over the victim-survivors, and other socially inequitable relations that exist between the
accused and the victim-survivors and that condition criminal behaviour. That is, subaltern women’s
situation marked by lack of education, economic dependency on dominant castes, landlessness,
lack of political voice and caste/race, caste and gender discrimination render them vulnerable to
crimes from specifically dominant caste actors. It is the systemic gender, caste/ethnicity and class
causal factors behind criminal acts that must be interrogated, for crimes are often directly traceable
to subaltern women’s inferior/subordinate social status as sanctioned by prevailing socio-cultural
and religious values. Two critical issues in this regard are the culture of violence and the corollary
culture of impunity for violence against subaltern women.
Culture of Violence
Studies have revealed that dominant caste status, often combined with patriarchal (male) status
and reinforced by dominant class position/s, is often understood, believed and accepted by the
dominant castes as the legitimising factor for exercising their power, authority and force over Adivasi
and Dalit women. The outcome is targeted physical and sexual violence against these women that
builds and sustains a culture of violence, seen in terms of the violation of the collective right of
subaltern women to security of life.
Crimes or atrocities against Adivasi and Dalit women occur at two levels. At one level, crimes
are an inherent part of the caste system whereby violence is utilised to reinforce caste norms and
subaltern women are seen as available for all forms of violence as a consequence of their birth
into the ‘lowest’ social ranks; that is, violence is targeted at them. This perception stems from the
caste system’s consideration of women’s ‘purity’ as intrinsic to maintaining caste purity in terms
of ensuring blood/genetic purity of the male lineage and the continuity of property resource
aggregations along caste lines. Hence, control over women’s sexuality becomes imperative.16 A complementarity, then, exists between labour exploitation and bodily exploitation, with subaltern
women seen as accessible for forced or coerced acts of violence by any dominant caste man or
woman due to their ascribed social inferiority and powerlessness related to several factors: their
‘low’ social status; cultural characteristics, particularly among Adivasis, marking them as ‘different’;
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relative independence of movement, perceived as women lacking social ‘controls’ and, consequently,
being sexually promiscuous; and, often, the women’s economic dependence on the dominant castes
for their livelihood.
At another level, crimes occur when subaltern women allegedly transgress caste norms such as caste
endogamy or Untouchability, or assert their rights over resources, and public or cultural spaces.
These assertions are, in part, due to their growing awareness of legal rights and articulation of needs,
resulting in the constant interplay of competing interests and, therefore, increased social conflicts.
In other words, the process of subaltern women’s empowerment itself is perceived as a challenge to
caste/racial and patriarchal hegemonic structures, and provides fertile ground for punitive violence
committed by the dominant castes.
For example, an advocacy research study based on interviews with 500 Dalit women across four
states—Andhra Pradesh, Bihar, Tamil Nadu and Uttar Pradesh—on violence they had experienced
between 1999 and 2004 in both the general community and the family from a variety of State
and non-State actors highlighted how dominant constructed discourses on Dalit women’s sexual
availability, their ‘criminal’ traits and their lowest positioning in the caste-class-gender hierarchies render them specifically vulnerable to violence from dominant castes. This violence manifests
itself particularly when Dalit women, explicitly or implicitly, assert their rights, particularly to sexual
integrity, equality and non-discrimination, security of life, and resources and economic development,
which were identified by the women as the main causal factors for dominant caste violence against them.
Hence, because they are viewed as sexually available ‘low’ caste women who move in gendered public
spaces and engage in productive labour, the women meet with retaliatory or punitive violence for
refusing sexual advances or for retorting to verbal sexual overtures of dominant caste males. Moreover,
sexual violence is also used as a tool by dominant caste men to reinforce the caste ‘impurity’ of both
the Dalit woman and her community, given the hegemonic discourse of women as symbolising
the group identity and bearing the honour of their community. In the context of caste-based
rules governing what they, as ‘impure’, ‘low’ caste women, should and should not say or do, these
women’s counter-discourse of equality, rights, dignity and self-respect occasion verbal, physical and
sexual violence from dominant castes while accessing water rights, places of worship, hotels or other
public places and so, on equal par with dominant caste women and men. In addition, the dominant
Brahminical discourse on purity versus impurity leads the dominant castes to perceive Dalit women
as having a criminal nature. This is evidenced by a number of cases of violence against these women
for their alleged trespass into the fields of the dominant castes to access fodder grass or firewood.
With a view to reinforcing Dalit women’s submissiveness and voicelessness as demanded under the
caste system, violence is also unleashed on Dalit women whenever they assert their right, under
attack, to protect and defend the right to life and security of life of their family or community.
The women also point out dominant caste violence on a whole range of economic and livelihood
issues aimed at stifling their economic self-sufficiency and independence, and at ensuring a steady
supply of their labour for dominant caste landlords and landowners.17
Building a Subaltern Women’s Perspective
155
Similarly, research on Adivasi women has revealed their experiences of numerous unreported
physical and sexual crimes from a number of dominant caste actors in their local settings,
including—in descending order—neighbouring villagers, forest officials, estate or farm managers
for whom the women work, as well as informal moneylenders. The fact that Adivasis, as a distinct
cultural group, stand outside the behavioural parameters of the caste system and have a worldview
that is characterised by freedom gives rise to the perception that they are different from others.
Racial discrimination leads to the ‘naturalisation’ of crimes against Adivasi women, particularly
when they attempt to continue their possession or utilisation of traditional natural resources,
or assert their rights to collect forest produce, or their right to organise, or merely as a consequence of dominant ethnic and gender perceptions of the women’s availability for such violence.
The occurrences of these crimes also take advantage of their poverty, their livelihood dependence
on forests that are policed by forest officials, or their dependence on the dominant castes for work
in farms and estates or for loans.18
This violence expropriates the individual woman’s bodily and sexual integrity as a means of
reinforcing her ‘lesser’ social status and identity as Adivasi/Dalit and as a woman. Hence, the form
that crimes take—for example, rapes—and their constituent elements may appear the same for all
women victim-survivors and be prosecuted by criminal law under the same elements and procedures.
However, what fails to be taken into account by many law enforcers is the systemic vulnerability
to crimes that subaltern women are subjected to and which conditions the women’s responses to
crimes. In addition, past incidents of violence also influence the construction of subaltern women’s
present reality, shaping, to a great extent, their perceptions of safe spaces in which they can live
amidst the ever-present dangers of violence from the dominant castes around them. Only by
understanding these factors can criminology adequately come to grips with the struggles to secure
the rights to life, liberty and security of life of subaltern women victim-survivors.
Culture of Impunity
Complementing this culture of violence is an equally entrenched culture of impunity for crimes
against subaltern women. A key constitutive element of an effective justice system and rights-based
governance is the delivery of accountability—truth, justice and reparations—by State agents to
citizens. Its direct opposite is impunity, which refers to:
…the impossibility, de jure or de facto, of bringing the perpetrators of violations to account…since
they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if
found guilty, sentenced to appropriate penalties, and to making reparations to their victims.19
The culture of impunity arises, in part, from the failure of criminology in India to recognise
and tackle the existence of the parallel systems of law in the country: caste law and modern
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criminal law. In fact, more often than not, it is the former that takes precedence over the latter in
cases of criminal acts against the socially excluded communities. As a consequence, modern criminal laws relevant to these communities remain progressive on paper alone. As observed by the
United Nations Special Rapporteur on Violence against Women:
Constitutional and legislative provisions that have been enacted to protect women from discrimination have not proved to be an effective deterrent. There remains a high incidence
of gender-based violence against women, which takes even more extreme forms because of
customary practices (for example, dowry, sati, devadasi); extreme forms of physical and sexual
violence and harassment against women who belong to particular castes or ethnic or religious
groups;…the continuing discrimination, including violence, suffered by women of the Dalit
community, despite the passage of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act of 1989…20
In the Indian context, impunity is a systemic state of mind—and, obviously, standpoint—that
one adopts in society on the strength of one’s caste-class-gender position in the system. As such,
one considers oneself above the rule of law and its sanctions that comprise modern governance,
and one justifies one’s functioning on the strength of the traditional (caste) law. The legitimacy
to subvert the rule of modern law and its priorities regarding justice, then, derives from one’s
adherence to traditional caste norms of justice. These are norms that ascribe justice on the basis of
caste ranking, as opposed to the principles of equality before the law, with justice diminishing the
lower one descends in the caste hierarchy. Under this system of caste-based norms, those falling
outside the caste ranks—Adivasi and Dalit women—are, therefore, perceived as inherently bereft
of the rights to justice.
The failure to deal with this anomalous situation of parallel systems of law has resulted in the
paucity of criminal justice institutions which are responsive to crimes against subaltern women, or
impunity in law. Furthermore, this ensures that those with socio-political power ascribed to them
by their ‘higher’ caste status exploit subaltern women’s subordinated caste-class-gender position in
carrying out crimes without social or legal repercussions, or impunity in fact. One has only to turn
to government statistics to see that around 70 per cent of cases of crimes against Adivasis and Dalits
that actually make it to the conclusion of court trials end in acquittals or discharges. Conversely, in
2003, an examination of the number of convictions in comparison to the total number of cases for
crimes against the Scheduled Castes and Scheduled Tribes revealed conviction rates of just 5.3 per
cent and 7.2 per cent, respectively.21 When viewed through a wider lens encompassing all cases
of atrocities which are suppressed and do not even make it to police stations, or cases in which
community actors or the police obstruct the passage of criminal justice, the percentage of cases
ending in the perpetrator walking free rises considerably.
Building a Subaltern Women’s Perspective
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This impunity occurs at different levels as far as subaltern women are concerned, and forms a
core concern of subaltern groups in the country today. One of the most serious issues that arises is
the failure of the Indian State and its agents to fulfil their obligation to act with due diligence to
prevent, investigate and punish acts of violence against subaltern women in both the general community and in the family at the hands of State or non-State actors.22 Instead, connivance at the
individual and systemic levels sees police or forest officials actively carrying out criminal acts, or
colluding with dominant caste-class perpetrators, who wield enormous socio-political power in
the villages, to suppress crimes against subaltern women from coming to light.
Another level utilises various direct and indirect exclusionary practices to prevent subaltern
women from attaining justice for crimes. Direct practices include delays in investigation of crimes
or in filing chargesheets to bring cases to trial, which result in many criminal cases being dropped
by the police. Official government statistics do not yield a correct picture, with very few cases
reaching the trial stage, not for want of true crimes or evidence from subaltern women, but because
the law and order and judicial systems fail these women.23 According to the National Human
Rights Commission, the problem ‘starts with registration of the case itself. Police resort to various
machinations to discourage Scheduled Castes/Scheduled Tribes from registering cases, to dilute
the seriousness of the violence, to shield the accused persons from arrest and prosecution and, in
some cases, the police themselves inflict violence.’24 The lack of implementation of criminal law
stems in part from police and judicial attitudes towards violence against Dalit and Adivasi women
as lesser crimes, or the treatment of the victim-survivor herself as the accused.
Indirect practices of exclusion result from the lack of gender- and caste/ethnicity-sensitive lens
employed in collecting evidence for crimes, or in presenting cases in the courts. This is particularly evident in what many term the ‘re-victimisation’ of victim-survivors of rape by the courts,
or in court biases that ‘dominant caste men would not touch “low” caste Dalit/Adivasi women’.25
Bhanwari Devi’s case in Rajasthan highlights the court biases towards ‘low’ caste women, which can
be extended to Dalit and Adivasi women. She was a ‘lower’ Backward Caste village development
worker who was raped by five dominant caste Gujjar men in 1992 for challenging accepted sociocultural norms by campaigning against child marriages. In November 1995, the trial court found
that the delay in filing her complaint with the police and in obtaining a medical examination indicated that she had made up the story. The judges also commented that the incident could not have
taken place because ‘upper’ caste men, including a Brahmin, would not rape a woman of a ‘lower’
caste. The men were acquitted of the charge of gang rape, but convicted of minor crimes.
Foisting false cases against subaltern women is another manipulative method used frequently by
the police, or by the police in collusion with dominant caste perpetrators, in order to pressurise the
women, their families or their community into withdrawing the women’s complaints. Moreover,
the perpetrators of crimes against subaltern women, in particular, are often able to exploit the
vulnerability and economic dependence of these women in order to threaten these women into
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‘compromises’ or force them to become hostile witnesses to ensure a case acquittal. For example, in
the case of State of Rajasthan vs Mirthaya Singh Thakur, an Adivasi woman, Rama Meena, from
Rajasthan was raped by a dominant caste Rajput in 2000. The police originally registered the case
under Section 354 (molestation) and not under Section 376 (rape) of the IPC 1860. On petition
to the local courts, the case was converted to Section 376 IPC 1860 read with Section 3(2)(v)
SC/ST (POA) Act 1989. At the trial later in 2003, however, the Special Public Prosecutor, also
a Rajput, harassed the Adivasi woman and changed her written statement. Hence, at the trial, the
Special Court acquitted the accused based on contradictions between the incorrect written statement and the victim-survivor’s testimony without probing further into the bona fides of the case.26
Both Bhanwari Devi and Rama Meena’s cases illustrate failures at the court level to adequately
protect the rights, during the judicial process, of Adivasi and Dalit women victim-survivors of
violence due to the same systemic biases that infuse the entire CJS.
Finally, impunity for a plethora of crimes against Adivasi and Dalit women which often do not
get registered nor appear on official records is effected through the perpetuation of their ignorance
of the law and their rights, as well as their fear of the perpetrators or of the police. This impunity
includes the failure to counteract social pressures on the women victims-survivors not to report
crimes in an area of influence where an accused wields power and authority, or controls women’s
sources of livelihood or—especially when crimes of a sexual nature are committed—takes advantage
of the dominant notions of ‘honour’ and ‘shame’ that coerce many women into silence.
Primary research reveals how as much as 40 per cent of instances of crimes against Dalit women
went unreported due to the victim-survivors’ fear of the perpetrator, or the social consequences of the
crime coming to light, or because of the social pressures placed on the women to silence any appeals
to justice; a further 44 per cent of crimes saw women’s attempts to access criminal justice mechanisms blocked at the levels of the perpetrator and her/his caste community, the family or Dalit
community, traditional village or caste panchayat, or the police. In less than 20 per cent of cases
did appropriate police and judicial action take place, although justice was still blocked at this level
through consequent coerced compromises or pressures placed on witnesses to turn hostile.27
In the case of Adivasi women, the number of unreported cases of physical and sexual violence
is equally striking. One study revealed that, of the over 200 instances of physical assaults on
Adivasi women by a wide range of perpetrators across the sample 100 villages, a mere 10 cases
had been registered with the police. Likewise, an almost equal number of instances of rape and
sexual exploitation had resulted in only five cases being registered with the police over a 10-year
period. By rough calculations, the rate of access to criminal justice mechanisms, therefore, stood
at as low as 4 per cent.28
The result is that, as established by empirical data, many subaltern women have lost faith in
the system’s ability to deliver justice when they became targets of crime. One fallout is crime
Building a Subaltern Women’s Perspective
159
control by individuals or organisations supporting the women utilising extrajudicial methods,
thereby spurning a cycle of crime. Another more common fallout is the continuing reliance on
informal, often caste-and-gender-biased caste panchayats to mete out what is too frequently
tokenistic punishment for crimes. This furthers the disjuncture between the democratic rule of
law and the rule of caste law and caste justice, rendering criminal law mere paper law. Compensation and rehabilitation, therefore, are too often neglected in the scheme of justice rendered to these
marginalised social groups. Measures to prevent the recurrence of atrocities against subaltern women,
likewise, either remain on paper or work ineffectually. In this regard, Amnesty International’s observation with reference to violence against Dalit women is relevant:
Unless supported by male relatives or a strong social group, women victims of crime are at a
severe disadvantage within the criminal justice system. Threats and harassment by perpetrators
and their communities and social pressures which exist within families and communities force
them towards compromise or withdrawal rather than pursuing justice. Gender biases which exist
within institutions of redress are often exacerbated by ingrained caste and other biases against members
of disadvantaged communities.29 [Emphasis added]
Given this situation, it is noteworthy that the Parliamentary Committee on the Welfare of
Scheduled Castes and Scheduled Tribes, having taken into account the rising rate of crimes against
Adivasis and Dalits, combined with failure of the State machinery to check this rise with stringent
action, concluded that atrocities on the Scheduled Castes and Scheduled Tribes constituted an
internal disturbance under Article 355 of the Indian Constitution. The Committee, therefore,
called for Central government intervention under various provisions to take strict action against
the offending states.30
These ubiquitous experiences of manifold crimes and systematic blockages to accessing criminal justice indicate the vital need for India’s gender, caste/ethnicity and class context to inform the
development and assessment of both criminology and legal and social policy. Criminology must be
integrated with this wider process of policy revision. In other words, the limited response of the law to
rights violations against subaltern women must be reversed so that the institutions of crime control
and criminal justice match up to the needs and rights of these women to freedom and justice.
SETTING CRIMINOLOGY WITHIN THE RIGHTS-BASED
GOVERNANCE FRAMEWORK
To meet the expectations of Adivasi and Dalit women, criminology must be set within the larger
democratic framework. Although criminology has its own right to function as a separate discipline
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with a bearing on justice delivery systems, it nevertheless has a broader role to play in enabling
these women to integrate with the democratic polity as full-fledged citizens who enjoy all human
rights. The cutting edge of democracy is to provide the maximum space for all its citizens for the
optimum expansion of their freedoms as informed subjects insofar as the enjoyment of their rights is
concerned. This is particularly important for Adivasi and Dalit women, who, as experience reveals,
face a number of challenges in realising their agency. The imperative is that criminology has to make
a breakthrough in its current understanding as a knowledge system and operational mechanism for
crime control and punishment, and instead reshape itself within the parameters of rights-based,
subaltern-sensitive governance, with particular reference to gender and caste/ethnicity.
Rights-based governance should imbibe an ethos of public responsibility and responsiveness
to the needs of the people, ensuring people’s active participation in governance, and transparency
and accountability of public institutions. The CJS, as a constituent part of the overall democratic
governance framework, has a share in reflecting these characteristics in its structures, policies and
operation so as to enable socially excluded subaltern women to enjoy their rights.
The implication of this understanding of rights-based governance is a groundbreaking venture for criminology, which is, indeed, both a challenging and creative enterprise. Looked at from
this angle of governance, it means that marginalised women have to become a priority concern
for criminology precisely because society has made them the last and the least of its citizens in the
matter of access to the CJS. Being the final avenue to access justice, a sense of ‘ownership’ imbued
in the marginalised women in order to enable them to enjoy their rights becomes the responsibility
of this justice delivery system.
Gender-sensitive criminology has, therefore, the difficult and challenging task of not only
committing itself to considering the various contours of crime and its implications for the
perpetrator and the victim-survivor but, more importantly, engaging itself with the life of
the woman who is seeking justice. After all, crime has a context for both the perpetrator and the
victim-survivor. However, in a patriarchal system of unequal gender power relations, the context
is heavily weighted on the side of the former, and this strongly argues in favour of a refocusing
of criminology in favour of the latter. Backed by Constitutional provisions for affirmative action
for socially and economically disadvantaged women, taking a preferential standpoint on behalf of
these women is in order.
Along with the importance of looking at the woman victim-survivor as a citizen before the law
and, therefore, her victim-condition from the law-and-order point of view, what requires equal, if
not more, attention is her life as a human. Hence, it is appropriate that criminal justice dispensation
transcend the legal status of the woman as citizen and reach out to her human condition as a
person located in a particular social context. This would entail criminology becoming responsive
to her social condition and needs, including her livelihood, security, employment and education.
Moreover, the focus on the woman merely as a ‘victim’ only makes her a dependant on the CJS
Building a Subaltern Women’s Perspective
161
and a mere justice-recipient—if and when, that is, she gets justice. Gender-friendly criminology,
on the other hand, would view her as justice-restorer in partnership with the CJS, and would
accordingly provide her with the requisite physical and social environment to enable her to
participate freely and adequately in her search for justice. In fact, rights-based, subaltern-sensitive
governance has to be seen in relation to the creation of an enabling environment that would, rather
than mere prescriptive procedures, be conducive to the enjoyment of human rights through a
partnership process.
More often than not, transparency in rights-based governance is interpreted as making
available relevant information to the public in order to inform them on matters concerning the
performance or non-performance of public institutions. While this is true, what is lost sight of is
that underlying this transparency is the factor of confidence being infused in the citizenry with
regard to the effectiveness of the system of governance, or its limitations thereof that might require
improvement. In fact, in democratic governance, it is this factor which contributes towards building
a vibrant and participatory polity. In a similar manner, gender-sensitive criminology, besides being
transparent about laws and procedures and the justice-delivery mechanisms available at its disposal,
is expected to win the confidence of the woman victim-survivor about its capacity to understand
the crime from her gender-subjugated viewpoint and accordingly deliver gender-centric and rightsoriented justice.
According to democratic governance and ethos, another requirement that enlightened
criminology must look into is the aspect of accountability. Since, in rights-based governance, no
one is above the law, which applies equally to all, no one is exempt from the democratic principle
of accountability. This means that the agents and institutions of the CJS must be made accountable
to the people for delivering justice without discrimination. Law is only as good as its enforcement:
in terms of criminal law, its higher onus on shaping societal standards of acceptable behaviour
demands serious attention towards the enforcement mechanisms available to protect and respect
subaltern women’s human rights. This duty of accountability will be fulfilled only when the legal
system meets the justice expectations of the people, in particular the most marginalised sections of
the citizenry. This forms part of the process of deepening democracy through imparting democratic
values of equality and liberty to Indian citizens.
All this requires building an enlightened citizenship as opposed to a mere culture of crime
control and punishment; it entails equipping citizens, especially those who are socially excluded,
with knowledge of their rights and responsibilities as equal citizens of this country, and with the
actual enjoyment of their basic social, economic and political rights.
In the final analysis, a new way of looking at criminology within the broader paradigm of
rights-based governance, and with a subaltern gender rights perspective, calls for a proactive and
interventionist approach. Evincing greater interest in and according priority concern to Adivasi and
Dalit women and transforming the identity of the victim-survivor and justice-recipient into that of
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Jayshree P. Mangubhai and Aloysius Irudayam S.J.
victim-subject and justice-partner calls for a change in the perspective and practice of criminology.
Going beyond crime control and punishment to crime prevention within the existing parameters
of the legal and criminal justice system, and viewing this system from the context and concerns
of the subaltern women victim-survivors, is bound to enlarge the scope of opportunities for the
women to expand their freedom and enjoy their rights.
NOTES & REFERENCES
1. United Nations Office of High Commissioner for Human Rights, Fact Sheet: Good Governance. Available online at
www.unhchr.ch/development/governance-01.html, accessed on 1 February 2002; see also www.ohchr.org/english/
issues/development/governance, accessed on 20 May 2006.
2. The term ‘dominant caste’ is taken in this essay to refer to social groups with ascribed ritual status and economic
and political power, who exercise dominance over Dalits and Adivasis, in particular. In most cases, this refers to all
non-SCs/STs in the local settings of Dalits and Adivasis.
3. Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes. 2004–05. Fourth Report on
Ministry of Home Affairs, Ministry of Social Justice and Empowerment and Ministry of Tribal Affairs: Atrocities on
Scheduled Castes and Scheduled Tribes and Pattern of Social Crimes Towards Them. New Delhi: Government of India.
Para 1.4.
4. National Commission for Scheduled Castes and Scheduled Tribes. 2002. 7th Annual Report 2001–02. New Delhi:
National Commission for Scheduled Castes and Scheduled Tribes.
5. National Commission for Scheduled Castes and Scheduled Tribes. 1998. National SC/ST Commission 4th Report
1996–97 & 1997–98 (Vol. 1), p. 231. New Delhi: National Commission for Scheduled Castes and Scheduled
Tribes.
6. National Campaign on Dalit Human Rights and Others vs Union of India (WC 104/2006): PIL filed by National
Campaign on Dalit Human Rights, Sakshi Human Rights Watch–Andhra Pradesh and Centre for Dalit Rights–
Rajasthan in 2006.
7. Irudayam, A. and J.P. Mangubhai. 2004. Adivasis Speak Out: Atrocities Against Adivasis in Tami Nadu. Bangalore:
Books for Change.
8. See Narayan, Deepa, Raj Patel, Kai Schafft, Anne Rademacher and Sara Koch-Schulte. 2000. Voices of the Poor: Can
Anyone Hear Us? (Voices of the Poor Series). New York: Oxford University Press (for World Bank).
9. The 15 listed atrocities are: (1) forcing a Dalit/Adivasi to drink or eat any inedible or obnoxious substance;
(2) dumping excreta, waste matter, carcasses or any other obnoxious substance in the premises or neighbourhood of a
Dalit/Adivasi; (3) forcibly removing the clothes of a Dalit/Adivasi or parading her/him naked or painting her/his face
or body or doing any similar derogatory act; (4) wrongfully occupying or cultivating any land owned by or allotted
to a Dalit/Adivasi, or getting such land transferred; (5) wrongfully dispossessing a Dalit/Adivasi from her/his land
or premises or interfering with the enjoyment of her/his rights over any land, premises or water; (6) compelling or
enticing a Dalit/Adivasi to do ‘begar’ or other similar forms of forced or bonded labour; (7) forcing or intimidating
a Dalit/Adivasi not to vote, or to vote to a particular candidate, or to vote in a manner other than that provided by
law; (8) instituting false, malicious or vexatious suits or criminal or other legal proceedings against a Dalit/Adivasi;
(9) giving false or frivolous information to any public servant and thereby causing such public servant to use her/his
lawful power to the injury or annoyance of a Dalit/Adivasi; (10) intentionally insulting or intimidating with intent to
humiliate a Dalit/Adivasi in public; (11) assaulting or using force to any Dalit/Adivasi woman with intent to dishonour
Building a Subaltern Women’s Perspective
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
163
or outrage her modesty; (12) using one’s position to dominate the will of a Dalit/Adivasi woman in order to sexually
exploit her to which she would not have otherwise agreed; (13) corrupting or fouling a water source ordinarily
used by Dalits/Adivasis; (14) denying or obstructing a Dalit/Adivasi from using any customary right of passage to
a place of public resort; and (15) forcing or causing a Dalit/Adivasi to leave her/his house, village or other place of
residence: Section 3(1) SC/ST (PoA) Act.
See, for example, National Commission for Scheduled Castes and Scheduled Tribes, 6th Annual Report 1999–2000
and 2000–01, New Delhi: National Commission for Scheduled Castes and Scheduled Tribes, 2001; National Human
Rights Commission, Report on Prevention of Atrocities against Scheduled Castes: Policy and Performance, Suggested
Interventions and Initiatives for NHRC, 2004. New Delhi: National Human Rights Commission; Parliamentary
Committee on the Welfare of Scheduled Castes and Scheduled Tribes, Fourth Report on Ministry of Home Affairs,
Ministry of Social Justice and Empowerment and Ministry of Tribal Affairs (14th Lok Sabha): Atrocities on Scheduled
Castes and Scheduled Tribes and Pattern of Social Crimes Towards Them, New Delhi: Government of India, 2005;
UN Committee on the Elimination of Discrimination Against Women, Concluding Comments/Observations
of the Committee on the Elimination of Discrimination Against Women: India, 2000, UN Doc.A/55/38.
Paras 30–90.
See Sakshi Human Rights Watch, Andhra Pradesh. 2005. ‘Justice Delivery Systems and Dalits: Analysis of Special
Courts Judgements.’ Secunderabad: Sakshi Human Rights Watch, Andhra Pradesh.
Sakshi Human Rights Watch–Andhra Pradesh. 2000. Dalit Human Rights Monitor 1999–2000. Secunderabad:
Sakshi Human Rights Watch–Andhra Pradesh.
(1997) 2 Crimes 587. See also Lalubha Keshrisin Garasia vs State of Gujarat and others (1997) Crl. L.J. 3847;
Masumsha Hasanasha Musalman vs State of Maharashtra (2000) 1 Crimes 239 (SC), where the High Courts
likewise decided that crimes had not been committed on the basis of the SC/ST identity of the victims and struck
down the provisions of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act 1989.
(1995) Supp. (4) SCC 469.
National Commission for Scheduled Castes and Scheduled Tribes. 1998. 4th Annual Report 1996–97 and 1997–98,
Volume I. New Delhi: National Commission for Scheduled Castes and Scheduled Tribes. Annexure 10.II.
See Chakravarti, U. 2003. Gendering Caste: Through a Feminist Lens. Calcutta: Stree; Dube, L. 1996. ‘Caste and
Women’, in Srinivas, M.N. (ed.), Caste: Its Twentieth Century Avatar. New Delhi: Viking Penguin, for a more
elaborate discussion on this point.
Irudayam, A., J.P. Mangubhai and J.G. Lee. 2006. Dalit Women Speak Out: Violence Against Dalit Women in India,
Volume I. Study Report. Chennai: National Campaign on Dalit Human Rights (NCDHR), National Federation
of Dalit Women (NFDW) and Institute of Development Education, Action and Studies (IDEAS).
Irudayam and Mangubhai 2004, op. cit.
United Nations Special Rapporteur on Impunity in Civil and Political Rights, Question of the Impunity of
Perpetrators of Violations of Human Rights (Civil and Political Rights): final report prepared by L. Joinet, pursuant
to Sub-Commission resolution 1995/35, 1996, UN Doc.E/CN.4/Sub.2/1996/18. While this report refers primarily
to impunity for gross human rights violations created or condoned by the State, or created by a breakdown in
authority of the State and its institutions, this expression is more broadly applied to all situations in which human
rights violations, including crimes, go unaddressed.
United Nations Special Rapporteur on Violence against Women, Report of the Special Rapporteur on Violence
against Women, its Causes and Consequences, Radhika Coomaraswamy, submitted in accordance with Commission
on Human Rights Resolution 2002/52, Addendum 1—International, regional and national developments in the
area of violence against women 1994–2003, UN Doc.E/CN.4/2003/75/Add.1. 2003. Para 16.
National Crimes Records Bureau. 2006. Crimes in India 2004 Report. New Delhi: National Crimes Records Bureau,
Tables 7.7 and 7.14.
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Jayshree P. Mangubhai and Aloysius Irudayam S.J.
22. See CEDAW General Comment 19: Violence against Women to the Convention on the Elimination of All
Forms of Discrimination against Women 1979, Articles 1 and 2; Declaration on the Elimination of Violence
against Women 1993; see Vishakha vs State of Rajasthan (1997 SCC 241) on applicability of international laws
by Indian Courts.
23. See National Human Rights Commission, Report on the Prevention of Atrocities against Scheduled Castes: Policy and
Performance, Suggested Interventions and Initiatives for NHRC, New Delhi: National Human Rights Commission,
2004; Justice K. Punnayya, Report of the Single Member Commission of Enquiry to Enquire into the Practice of
Untouchability against Scheduled Castes and Tribes, Secunderabad: Government of Andhra Pradesh, 2001; Hann,
M., Justice Delivery Systems and Dalits 2005, Secunderabad: Sakshi Human Rights Watch, Andhra Pradesh, 2005.
24. National Human Rights Commission, Report on the Prevention of Atrocities against Scheduled Castes: Policy and
Performance, Suggested Interventions and Initiatives for NHRC, New Delhi: National Human Rights Commission,
2004, p. 114.
25. See Amnesty International. 2001. ‘The Battle Against Fear and Discrimination: The Impact of Violence Against
Women in Uttar Pradesh and Rajasthan.’ AI-index ASA 20/016/2001.
26. Case details courtesy of Advocate P.L. Mimroth, Centre for Dalit Rights, Jaipur.
27. Irudayam, A., J.G. Lee, and J.P. Mangubhai. Dalit Women Speak Out: Violence Against Dalit Women in India. Madurai:
IDEAS.
28. Irudayam and Mangubhai 2004. op. cit. Note that precise numbers cannot be given here, as many women had faced
regular or frequent physical or sexual violence over the 10-year-period that they could not recall the exact number
of times the violence had occurred, and could, at best, approximate that the violence had occurred a few times or
many times. The figures presented, therefore, are an aggregation of the number of precise instances mentioned by
Adivasis, as well as a nominal number of one instance ascribed to those women who mentioned facing violence many
times. Even on this reading, however, the number of cases registered with the police stands well below 10 per cent.
29. Amnesty International. 2001. The Battle Against Fear and Discrimination: The Impact of Violence Against Women in
Uttar Pradesh and Rajasthan, p. 25.
30. Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes, Fourth Report on Ministry
of Home Affairs, Ministry of Social Justice and Empowerment and Ministry of Tribal Affairs (14th Lok Sabha),
Atrocities on Scheduled Castes and Scheduled Tribes and Pattern of Social Crimes towards Them, Government of India,
2004–05. Paras 1.29–1.30.
7
Whose Life is it Anyway?: Adivasi Communities
and Entitlements to Life
Seema Misra
INTRODUCTION
‘The law favours and protects only the rich’ is a constant refrain. Far from being mere rhetoric, this
is the everyday experience of most people that contradicts the notion of the supremacy of the rule
of law. The belief that equality and the protection of the law are available only to the politically
and economically well placed is reinforced by the differential treatment of illegality in society. This
does not bode well for peace and the maintenance of law and order in society.
Illegality is decided by law. What comprises an illegal act and the remedies that are available are
clearly defined and provided by law. Based on the direction and type of socio-economic development
and progress that they set in motion, the rulers/lawmakers of the country decide the kinds of acts
that law will declare illegal. Obviously, not everyone in the country would agree with the kind of
laws or the direction of economic development. This is both expected and permitted in a democracy.
The people have a right to not only dissent but to do so with a loud enough voice in an attempt to
make the lawmakers change their minds, or at least raise a few doubts. The Constitution of India
guarantees protection of fundamental rights to dissenters.
Everyone has the scope to be heard, to advocate amendments to laws they consider unfair or
to protest against the unfair targeting of certain groups. The problem arises when, because of the
illegal nature of their shelter/homes or occupation, people are denied the protection of their fundamental rights. This precipitates the notion of an unequal protection by law, protection that
depends on who is seeking it.
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There are people who have no legal rights over the lands they have been living on and cultivating
for generations. Often, the law declares these lands reserved or protected forests,1 or sanctuaries and
national parks.2 The access of these people to forest produce or to the grazing of cattle is rendered
illegal: they are threatened and penalised for entering the forest. A large number of these people
belong to the Adivasi communities. They live every day under the unpredictable threat of being
evicted from their homes; the only legal protection they have is the due process of law. Over the
years, when these people have protested against oppression by the forest department or raised their
voices to demand legal rights, the State has used force to suppress them—to the extent of denying
them the right to life.
This illegality net becomes wider when the state uses its power of eminent domain to acquire
land for the ‘public good’. When the lands of the members of Adivasi communities who have legal
rights over these lands are acquired, there is almost no scope within the law for them to prevent the
acquisition of their land and their means of livelihood.3 All that they are entitled to is monetary compensation for the land that the government has taken away from them. Again, whenever they have
voiced their protest at being alienated from their lands, they have been treated extremely harshly
by the State.
Why is the illegality of the Adivasi forest dweller treated so much more stringently in law than the
illegality of some others with better economic and social status? Does their ‘illegal existence’ disentitle
them from protection under the Constitution?
In terms of numbers—8 per cent of the country’s population—the Adivasi forest dwellers
comprise a significant section of the population: four million people live inside national parks and
sanctuaries meant for the protection of wildlife.4 They have been living on, or cultivating, these
lands for generations but do not have land records. The Planning Commission estimates that 21.3
million people have been displaced between 1990 and 1995. It was estimated that 40 per cent of
those displaced were Adivasis.
This chapter primarily looks at the following issues:
(1) The protection available under the Indian legal framework to a section of society whose
access to shelter and livelihood are illegal, with specific reference to the Adivasi forest settler.
(2) The nature and extent of protection available to people opposing state policy or law. What
are the circumstances in which the rights of such people are being violated?
(3) Whether there is, in fact, a differential treatment of illegality.
(4) Whether the law permits harsh action against dissenters.
(5) The attitude of the courts when this section of the population does manage to access the
courts for their basic rights.
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ADIVASI PROTESTS
The Mehndikheda Incident
The need to look at State repression on Adivasis is important because of numerous incidents and the
severity of action in recent years. In 2000, in Kashipur in Orissa, police fired on Adivasis opposing
evictions resulting from the setting up of a bauxite mining company, killing four people; in 2001,
in Jharkhand, Adivasis from the submergence region of the Koel Karo dam who were on dharna
were fired upon by the police, and eight people died; the same year, in Madhya Pradesh, police shot
Adivasis protesting against the destruction of their homes by the police and the forest department,
killing four people; in January 2006, 12 Adivasis and a policeman were killed when the police fired
upon people protesting against the setting up of a factory in Kalinganagar in Orissa.
Dharnas and large-scale rallies on the streets are the way Adivasi communities protest against the
government. These protestors have been beaten, arrested, charged with criminal offences—and, in
many cases, killed. It is necessary to see if these cases of extreme repression are exceptions or have
become a pattern. Has the State ever been justified in its actions? What remedy is there in law for
protesting citizens? Does the State ensure that a remedy, if any, is accessible? Are the rights to protest
and to life and liberty available to those citizens who oppose State policies and laws? Or is it the State’s
prerogative to decide to whom these rights can be conferred and when and who can protest?
On 2 April 2001, four people were killed in police firing in village Mehndikheda in Bagli
tehsil of the Dewas district of Madhya Pradesh. These facts are not disputed either by the
villagers or by the administration. Since both civil society and government reports are available for
this particular incident, let us unravel the story from both sides so as to determine why the police
had to resort to firing, and if any action was taken about the deaths of the four Adivasis. Was the
action in accordance with the laws, procedures and protection laid down in the framework of
the Constitution?
Two civil society fact-finding reports are available. The first was by a team of the Indian People’s
Tribunal on Environment and Human Rights (IPT), Mumbai,5 that visited, from 17–19 May 2001,
all the villages, including Mehndikheda, that were related to the incident. The second report was by
a group of senior social activists from Rajasthan6 that visited the area on 13 April 2001. According
to both reports, on the day of the incident, people from the neighbouring villages had gathered at
Mehndikheda to protest against the harassment and repression that had been carried out in their
villages for the previous three days by the police, the administration and the forest department.
In one village, houses had been destroyed; in another people had been teargassed; some people,
including women, had been illegally detained. The meeting was about to begin in Mehndikheda
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when a number of government vehicles entered the village. The people gathered tried to talk to the
officials but were teargassed. The villagers then began to run towards the forest, in which process
the police opened fire.
Since that was an Adivasi area, the villages bordered the forest. The people told the IPT factfinding team that the forest department and the administration had been antagonised by the
villagers because the villagers had organised themselves under the banner of the Adivasi Morcha
Sangathan (AMS), an organisation that spoke of the basic right to life and liberty of the Adivasis
and that had started raising questions about the prevalent corruption. Consequently, the villagers
were refusing to pay bribes, which they had to earlier. For instance, they were made to pay a bribe
of Rs 10 per animal for their goats and cattle to be allowed to graze in the forest. A cartful of
manure could be collected for a bribe of Rs 50. Rs 1,000 had to be paid per chasma (compartment)
for their houses. In the previous three months, the people had twice sat on dharnas, blocking the
roads to demand drought work, regular water supply for the fields, and so on. The government
had not responded at all.
According to the villagers, the administration was also unhappy because they had not joined
the Van Suraksha Samiti (VSS) sponsored by the government; instead, they had caught one of the
VSS members trying to smuggle timber out of the forest. The villagers constantly reiterated to
the IPT team that they did not cut timber from the forest for commercial purposes: they did not
want to destroy the forest. They only took wood for their houses, which they had been doing for
generations. The people also said that they refused to testify to the government’s fact-finding team
because the person doing the inquiry had come to the village with the Collector and the police
officials who led the group that had attacked them.
The people informed the IPT team that their houses, grains, implements, and so on, had been
destroyed by the officials in five different villages in the three days prior to the Mehndikheda
incident. They did not know what to do: so, in sheer desperation, they sent a letter to the Chief
Minister with the details of the loss they had suffered.
The conclusion reached by the IPT’s fact-finding team was that the police had entered Mehndikheda
in an army-like fashion and had, without any warning, fired at the villagers. The IPT team said that
the villagers had assembled peacefully and that the action of the police was completely unnecessary.
One of the recommendations of the team was that the policemen who had fired and the officials
at whose instance they had fired should be booked under Section 302 of the IPC, 1872.
The government set up a one-man inquiry into the incident.7 The person conducting the inquiry
was Dr J.L. Bose, Principal Secretary, Housing and Environment, Government of Madhya Pradesh.
His terms of reference were to look at the incident in the context of the joint campaign conducted
by the administration, the police and the forest department from 28 March to 2 April to stop
illegal cultivation and felling in the forest, and, among other issues, to determine the circumstances
which compelled the police to fire upon the people.
Whose Life is it Anyway?
169
According to the government inquiry report, the joint mission was set up to tackle the largescale illegal felling and encroachment into the forest in the villages of Bagli tehsil at the behest
of the AMS. This organisation, the inquiry report contended, had also been instigating the local
Adivasi population against the administration. Previous attempts to stop encroachment and
cultivation on forest land and illegal felling had failed, which necessitated the joint mission that included the police, the administration and the forest department under the leadership of the
Collector himself. The minutes of the meetings held between the three departments claimed that
the AMS was instigating people to cut the forest, was indulging in other antisocial activities and
was creating problems for the administration. So, the leaders of the organisation had to be dealt
with a firm hand. A development package for the social and economic uplift was required to win
over the people.
The report says that the joint team that went to different villages between 28 March and 2 April
faced stiff opposition when it tried to confiscate the illegally-felled wood and stop the encroachment
of forest land. In a few of the villages, stone-pelting hurt members of the team, despite which they
managed to finish the task at hand. In the background of what had happened in other villages,
they were prepared for stiffer opposition in Mehndikheda, but not on the scale of what happened.
On 2 April 2001, when the joint mission of 200 persons headed by the Collector, the police
adhyaksh and the mandal forest officer reached the village, they found no one there. After a while,
about 200 people emerged from the east of the village. As soon as the Collector saw them, he announced over a loudspeaker that the villagers should come forward and hold a discussion with the
team, and that they would not be harmed. He repeated this a couple of times. But the villagers
began pelting stones and attacking the team with bows and arrows, and even shot at them. While
this was going on, a group of 100 people emerged from the north, also pelting stones, attacking the
joint team with bows and arrows and firearms. As the team was trying to deal with these groups,
another group of 150–200 Adivasis attacked from the west. The joint team was surrounded from
all sides by members and supporters of the AMS, about 15–20 of whom were carrying guns and the
rest bows and arrows. In the midst of the stone-pelting, they were warned through the loudspeaker
to stop and that their gathering had been declared illegal.
When the assembled crowd did not disperse, teargas was used to try and disperse them. When
this had no effect, rubber bullets were used, but the armed Adivasis retaliated by firing upon the
joint team. One person from the police team was hit by a bullet below his knees. The Collector
sounded a warning again on the loudspeaker declaring the gathering illegal and asking the villagers
to disperse, otherwise they would be fired upon. The crowd did not disperse, and the police was
ordered to fire in the air, which had no effect. A bullet hit a forest village committee member on
his elbow and another grazed a police reservist. After five rounds were fired in the air, the Collector
saw no alternative but to warn the Adivasis that if they did not disperse they would be directly
fired upon. The warning went unheeded, the Collector ordered the police to fire into the crowd,
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five rounds were fired. Two people armed with guns were seen falling to the ground after being
hit. Seeing them fall, the crowd ran away, only to assemble again.
The inquiry took the testimony of the Collector, the mandal forest officer, the police adhyaksh
and more than 15 villagers. The Collector claims that from the armed resistance the Adivasis put
up, it seemed that the AMS had trained them to use arms. After considering everyone’s testimony,
the inquiry came to the conclusion that the police had no alternative other than to fire at the crowd
to counter the attack. If the police had not fired, there was a possibility that more lives would have
been lost. The firing was, therefore, both appropriate and limited.
The only facts that everyone agreed on were the number of people killed, the location of the
incident and that the deaths were caused by police firing. The people’s claim was that their protest,
or dharna, in the village was attacked whereas the administration’s version was that an ‘unlawful
assembly’ of more than 300 people armed with bows and arrows and guns had attacked the joint
government team.
Who will decide which version was correct? It cannot be denied that both sides were partisan. But
could the whole issue be closed for discussion as soon as the administration justified the firing?
Let us analyse the different provisions of the law dealing with this issue. There is no mandatory provision in the law for both sides of the story to be placed before an independent forum—such
as the judiciary—to take a final decision. As far as the villagers gathered in Mehndikheda were
concerned, they were exercising their fundamental right to protest by assembling to demonstrate
against the atrocities committed for the past three to four days by the team set up by the government.
The right to sit in protest or to take out demonstrations, though not specifically mentioned as such,
falls within the ambit of Article 19(1)(b) of the Constitution of India, that is, the right to assemble
peacefully without arms. The administration claimed that it was maintaining public tranquillity by
controlling an unlawful armed assembly, which it not only has the power but is also duty-bound
to do under Section 129 Code of Criminal Procedure (CrPC), 1973.
Reasonable restrictions can be imposed on the freedom to assemble peacefully without arms, like
all freedoms guaranteed under the Constitution. As far back as 1972, the Supreme Court8 said that requirement for police permission for a rally or public meeting does not violate the right to assemble.
Similarly, any prohibitory orders under Section 144 CrPC can be issued, with the result that no
rallies or dharnas can be held in the area under reference. Being part of an unlawful assembly is
an offence under Section 142, 143 of the IPC. An unlawful assembly is defined in Section 141 of
the IPC as an assembly of five or more persons whose common objective is to:
(1) overawe the government, legislature or any public servant exercising lawful powers by
criminal force, or show of criminal force;
(2) resist the execution of any law or legal process;
(3) commit mischief, criminal trespass or any other offence;
Whose Life is it Anyway?
171
(4) take possession of property or deprive anyone of the right of way, use of water or legal right
she/he enjoys, by using criminal force or by a show of criminal force;
(5) compel anyone to do what she/he is not legally bound to do by using criminal force, or
through show of criminal force. (Any assembly which was not unlawful at the time it
assembled can subsequently become unlawful.)
By this definition, a group of five or more people stopping land acquisition proceedings by sitting
in protest outside the Collector’s office can be declared to be a part of an unlawful assembly since
they are resisting the execution of a legal process. In Mehndikheda, according to the administration,
the villagers were committing offences by felling trees and cultivating inside the forest. Under the
Indian Forest Act, 1927, and the Wildlife (Protection) Act, 1972, once an area has been declared
protected or a sanctuary, etc., no felling of timber or cultivation inside the forest is permitted. Whatever access people might have to minor forest produce or to grazing grounds exists only if such access
is recorded as a right at the time the forest is declared a protected forest. Therefore, all access to the
forest is banned and illegal, and it is the duty of the forest department to enforce the prohibition.
The villagers in Mehndikheda were resisting and obstructing the actions of the officials. This was
the reason the government cited to reach Mehndikheda with an armed force of 200 personnel.
The administration has been given wide powers to use force to maintain public tranquility,
to disperse any unlawful assembly or group of five or more people who are a threat to public
peace. Section 129 of the CrPC empowers the Executive Magistrate or the officer in charge of
a police station, or, in the absence of such an officer, any police officer not below the rank of a
sub-inspector to order an unlawful assembly or group likely to disturb public peace to disperse.
If the said assembly does not, force can be used to disperse it or its members can be arrested and
confined. What kind and how much force can be used is written into the police manuals of each
state, with the caveat that the minimum force required is to be used. The Police Officer should,
of course, bear in mind the principle that no more force than is necessary should be used. Firing
to disperse a crowd is to be used as a last resort.
For example, in The Kerala Police Manual, 1970,9 the step-by-step procedure to use force to
disperse unlawful assemblies begins with requiring a magistrate to be present if the police anticipates
a breach of peace. The magistrate will decide if, and what type of, force will be used, after which
the senior-most police officer will decide the extent of force—whether teargas, lathi charge, and
so on. A lathi charge has to be preceded by a warning, and the procedure even states how the warning
is to be given. On the issue of firing, it states that warning shots in the air are impermissible, and
that the aim should be kept low and at the most threatening part of the crowd. Finally,
…an accurate diary of all incidents, orders and action along with the time of occurrence should
be maintained by the police. This will include an individual report by all officers involved in
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Seema Misra
the firing. The number of fired cartridges and the balance of unfired cartridges should be verified
to ensure ammunition is accounted for.10
The police and administration went into Mehndikheda all ready for attack. The government
inquiry report describes a textbook adherence to legal procedures before the gathered crowd was
fired upon. The crowd was large: it was 300 strong; it was armed with bows, arrows and guns; it
was pelting stones; and it was advancing and attacking the police. The Collector ordered the firing
only after warning and taking all other required steps to disperse the crowd—such as teargas, rubber
bullets, firing in the air—before firing directly at the crowd. The only absence of information is in
there being no mention of where on their bodies the dead were hit. The report of the Rajasthan
activists mentioned that two people were hit in the back and the neck.
Therefore, as far as the administrative inquiry was concerned, the police was well within the
law: it followed the correct procedure and did nothing illegal. People do have the right to assemble
and protest, but their right to life is curtailed when the administration claims that the protesters
were armed or were a threat to peace, and that due process was followed. There seemed to be no
alternative forum within the law for the villagers to seek redress for their grievances that arose
out of this incident. Besides a writ petition in the High Court—or Supreme Court, as the final
resort—there is no mandatory provision in the law for the incident to have been put before an
independent judicial forum that would have verified and decided if required procedures were
actually followed.
The Tapkara Shaheed Sthal Incident
On 2 February 2001, approximately 4,000 people from the Adivasi community living in
villages around Tapkara in Ranchi district in Jharkhand assembled at Shaheed Sthal at
9 a.m. to protest. By 5 p.m., eight people were dead after police fired at the crowd. The
local organisation, Koel Karo Jan Sangathan, had organised this dharna to protest against the
misbehaviour of two policemen on February 1 in one of the villages. The two policemen had
uprooted a barricade installed for the past three decades to oppose the construction of the Koel
Karo dam and had beaten two people when they tried to stop the policemen. One of the persons
beaten was rendered unconscious. The People’s Union for Civil Liberties (PUCL), Jamshedpur,
conducted a fact-finding into the incident11 and visited the hospital immediately after the firing
to establish from hospital records the number of dead and injured and what kind of injuries they
had sustained. The PUCL report tried to put forth all the versions of the incident to establish
what really happened.
Whose Life is it Anyway?
173
The demonstrators who had gathered at Tapkara Shaheed Sthal chose five representatives who
would present a memorandum containing their demands to the police officers. One of their demands
was that the two policemen be suspended. This was read out to the people and then presented
to the Deputy Superintendent of Police, Kujur. He expressed his inability to do anything and
requested them to wait for the Superintendent of Police Rural, Ranchi, who had jurisdiction over
the matter and would arrive at 4 p.m. The police version is that the local Bharatiya Janata Party
(BJP) Member of the Legislative Assembly (MLA) arrived at the protest, spoke with the policemen
and addressed the gathering. After he left, the police said, some local goons incited the crowd to
violence. To disperse the violent mob, the police first lathi-charged and then teargassed the crowd.
But the crowd got more violent and set alight a police vehicle. There was also firing from a section
of the crowd. In order to protect their own lives, the police opened fire at the crowd after a due
warning. The order to fire was given by a Sub-Divisional Officer. The police claim that one police
constable was beaten to death and one jeep gutted.
One version has it that the problem started after the BJP MLA left. Some police officials,
angry with the people for making allegations against them, began beating the crowd, which included women and children, with lathis. Seeing this, some youths in the crowd began pelting stones
at the police. The police party went inside the police station and fired in the air, which led to the
people fleeing from the area. All of a sudden, the police fired at the running crowd. Struck by
bullets, some people fell immediately to the ground. The firing continued for an hour. Eyewitnesses
repudiate the police version that teargas was used to control the crowd, saying that teargas was
used only after the firing. The police FIR claims that the crowd continued to pelt stones after
several rounds had been fired. According to the PUCL, although the police claimed that there was
continuous firing from one side of the crowd, there were no bullet marks on the police vehicles or
on the walls of the outpost, and that the police recovered only four empty shells.
The government set up an inquiry, but its outcome is unknown. The PUCL visited the hospital
the day after the incident, and the hospital records showed that at least six of the injured and dead
had been hit by bullets in the back, head, neck, stomach, and so on.
It was no one’s contention that the assembly in the morning was violent or unlawful or disturbing
peace, though 4,000 people sat in dharna. The police officials accepted the memorandum of the
leaders. The issue was emotive because the barricade had been up in that village for the past three
decades. Suddenly, there was stone-pelting and firing. The police and people’s versions, as always,
were contradictory. Even if the Kerala firing procedures are more stringent than those followed in
Jharkhand and Bihar, it is apparent that the most basic procedures were not followed. People did
not hear any warning and claim that teargas was released after the firing; the police say that there
was stone-pelting and firing by the crowd for long hours.
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Seema Misra
So, what is the final verdict? Was the firing justified because the government claims a policeman
was killed and, therefore, no procedures needed to be followed? Is it one policeman’s life versus
the lives of eight citizens?
The Maikanch Incident
On 16 December 2000, three Adivasi villagers were killed in police firing in Maikanch in
Kashipur block of Raygada district of Orissa. The police had gone to Maikanch village in a large
contingent with the District Magistrate to investigate an incident that had occurred the previous
day, when the pro- and anti-mining factions had clashed and a political pro-mining leader had
been roughed up. On 16 December, seeing the police and expecting trouble, the men of the village
ran away to the mountains to hide.12 When the police began misbehaving with the women in
the village, the men returned. The police then fired upon the people without warning, killing three
people and injuring eight.
The people of Kashipur had been agitating for the previous eight years against the setting up of
an alumina plant for which their lands were being acquired. After a lot of public pressure, the Orissa
government set up a judicial inquiry on 20 January 2001, under the Commission of Inquiry Act,
1952, headed by a sitting judge of the High Court, Justice P.K. Mishra. The Commission, which
submitted its report on 17 January 2003, said that the FIR on the basis of which the police had gone
to the village had been manipulated. The Commission also questioned the motive of the police for
having gone to the village with such a large contingent of armed police simply to investigate the previous day’s incident and an old theft. The Commission did not accept the state’s stand that a police
jeep had been damaged because of firing by the villagers; it also held as exaggerated the police’s
claim that the villagers had attacked with bows and arrows, and upheld as more probable the
villagers’ claim that the police had fired indiscriminately. Several officials, including the officer in
charge of the police station and the Executive Magistrate, were held responsible by name for having
let the situation go out of hand and for having used unnecessary and excessive force. According to
the Commission, Y.K. Jethwa, then Superintendent of Police Raygada, [was] ‘…also overzealous in
the matter by directing such a large contingent to go to the village on 06.12.2000’13 and Sri Subhas
Chandra Swain, a policeman, ‘appears to have precipitated the matter by assaulting the two tribal
ladies inside Jhodiasahi’.14
The Commission went on to say: ‘The blame for use of excessive force lies squarely on the head
of Sri Prava Sankar Naik then officer in-charge who had implemented the orders being passed by the
Executive Magistrate. By continuing firing for 19 rounds, he has exceeded the requirement.’15
Sri Golak Chandra Badajena was the Executive Magistrate under whose direction firing took
place. It appears that the Executive Magistrate has not exercised proper control in the matter of
Whose Life is it Anyway?
175
firing…. He should not have kept quiet regarding the extent of firing and should not have left
the matter to the police officers. There was no necessity to continue firing for 19 rounds.16
Public pressure had to be put on the government to even table this report in the Legislative
Assembly, where the government took the stand that the report did not state specific action against
any official. In December 2004, the Bhubaneshwar and Cuttack units of the PUCL filed a writ
petition17 in the Orissa High Court asking it to direct the government to initiate legal action
against the police and the administrative officials against whom prima facie materials were available
on the basis of the Inquiry Commission’s report; to entrust the criminal investigation part to the
Central Bureau of Investigation (CBI) for a credible outcome to the investigation and to recover
the money paid towards compensation from the officials on a pro rata basis.
HUMAN RIGHTS CONCERNS
Whether it was Adivasis protesting against harassment by forest officials or the police or resisting
the acquisition of their lands, the State has taken extreme action against the protesters, which have
often resulted in fatalities. In 2000–01, there were at least four (three of which are referred to here)
cases of State action against protesting Adivasis which ended in deaths of some of the protestors.
This is not peculiar to 2000–01: the PUCL, which has been documenting for decades police firing
during protests, said in a report in 198118 that ‘the number of police firings admitted exceeds 295,
leaving 313 persons and more dead and over 1300 injured in the last 16 months’. These did not
include encounter deaths and deaths due to public disturbances. They were specifically of people
protesting against government policies such as closure of mills, price increases or during antireservation stirs. What is interesting is that the report stated:
If the press reports are to be believed, most firings seem justified…. The crowds are normally
destroying public and private property. They are looting a bank or setting it afire, or attacking a
police station. They are generally strong in numbers. Very often the mob is armed with‚ ‘spears’
and ‘lathis’ or bows and arrows. They are indulging in stoning.19
More than 20 years later, the very same justifications are being used for extreme government
action. In the three illustrative cases, it was the same story: the government version that there
was attack by stones or bows and arrows or the death of a policeman justified the firing, or a
commission of inquiry’s report was ignored. The State decides when, where and how citizens can
exercise their freedom of speech, freedom to assemble or the right to life. If a group of people—especially
Adivasis—comes in the way of State policy, then their fundamental rights can be restricted. These
are surely not the fundamental rights envisaged in the Constitution.
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Seema Misra
The issue here is not that the police and the administration should not be given extensive powers to
disperse an assembly, or to use force to do so. Given the number of communal disturbances, these are
necessary powers, but there need to be stringent checks and balances. The procedures laid down for the
police to fire are very detailed. It is both crucial and disturbing, however, that when the police resorts to
firing, there is no method to ensure an independent review of whether it was justified and whether appropriate steps were taken leading up to the firing. If there are conflicting stories, it is presumed
that the government’s version is writ. It becomes a government-versus-citizen issue. There is no
method or principle laid down to determine if the proportionality of force used to quell protestors
was appropriate. There are no systems in place to check if the official issuing firing orders followed
due diligence in dispersing the crowd. The people can consider themselves lucky if a commission
of inquiry is set up to look into the issue, or if compensation is given for the lives lost, or a police
official is transferred.
Inquiry commissions are limiting as they have only recommendatory powers and cannot initiate
any proceedings if someone is found guilty. The history of inquiries set up under the Commission
of Inquiry Act 1952 is well documented, and even mandatory provisions of tabling the findings
are not followed.20 But having no other alternative, human rights activists demand the setting up
of inquiry commissions. If nothing else, there is, at the least, another version of an incident on
record. A number of activists have been trying to advocate that criminal cases under the IPC be
filed against officials who caused fatalities, but with little success.
Only in cases of death by State action does the State even attempt to justify or provide an explanation for an attack. In fact, the state rarely bothers to respond to any accusations or allegations
when people are hurt or if property is damaged or if people are illegally detained. The first National
Police Commission, set up in 1977, recommended a judicial inquiry by an Additional Sessions
Judge into any case where two or more people died from police firing in the course of dispersal
of unlawful assembly.21 The Additional Sessions Judge will be designated as a District Inquiry
Authority and be assisted by an assessor. It will be mandatory for the government to publish the
inquiry report and decisions taken within two months of receiving the report.
The judiciary’s response to this violation of the right to life is important as it is the last resort
for the protection of people’s fundamental rights. Due to the efforts of the NHRC and civil society
human rights groups, a judicial review of instances of custodial deaths and ‘encounter’ killings
(at least in non-armed conflict regions of the country) takes place regularly. The NHRC has laid
down procedures22 of inquiry to be followed in cases of encounter killings; the latest amendments
to the CrPC in June 2006,23 provides that besides investigation by the police, an inquiry by a
Judicial or Metropolitan Magistrate is mandatory in cases of custodial rape and death. In many
custodial death cases, murder charges have been registered against the allegedly erring police
officers or jail authorities. But a similar situation has not emerged in case of death due to police
firing at protestors.
Whose Life is it Anyway?
177
THE PROBLEM OF IMPUNITY
Even when the courts have declared police firing to be illegal, and castigated blatant violations of
procedures laid down for opening fire to disperse unlawful assemblies or riotous crowds—such
as firing being ordered by an officer who has no authority to do so under the law—no action
has been ordered against the officials responsible.24 This raises the grave issue of the impunity of
government officials. Over the years, human rights activists have realised that to protect the basic
human rights, executive power has to be kept in check, to which end individuals responsible for
violations must face the consequences for breaking the law. While compensation provides relief
to the victims, officials being punished ensures long-term adherence to the law by the executive
and the protection of fundamental rights.
The Andhra Pradesh High Court’s decision in the well-known anti-electricity price hike agitation
typifies the decisions the courts make in such cases.25 On 28 August 2000, the opposition parties
had organised a strike in Andhra Pradesh to protest against the enhancement of the electricity
tariff. In a protest in Hyderabad, thousands of people had gathered. The police allegedly lathicharged and then fired upon the protestors without due warning, killing at least two people on the
spot. Two human rights organisations—the Andhra Pradesh Civil Liberties Committee and the
PUCL—filed writ petitions. One organisation asked for the policemen responsible to be charged
with murder and compensation to be paid to the families of the dead. The other organisation
asked for a commission of inquiry headed by a sitting judge of the High Court. The police stated
before the High Court that it was only discharging its duty, that the firing was justified and in
self-defence. This, the police said, could be proved by video recordings taken of the incident by
the police and by private parties.
The Court directed that the CID investigation ordered by the Home Ministry should be under
the supervision of the Additional Inspector-General of Police, who would look into the matter
to ascertain if firing was justified, if excessive force was used and if the firing was aimed at the
demonstrators’ chest and neck. While giving reasons for these directions, the Court said:
The Home Secretary has clearly stated that the CID would comprehend all aspects of all incidents
which occurred on 28.08.2000. Cases have already been registered, therefore, in our view it will
not be necessary to register a specific case of crime against police officials when even the petitioners have not been able to give names of any of the police officers.… But, since the CID
has already been ordered to comprehend all aspects in the investigation, therefore, we have no
reason to disbelieve that the officers concerned will not look into the aspects as to whether the
police firing was justified or not and if they come to the conclusion that it was not justified they
will proceed accordingly. Similarly if during the investigation the investigation agency comes to
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Seema Misra
a conclusion that certain policemen or police officers are guilty of offence, they will be bound
to proceed against them in accordance with law.
It should be noted that this incident became very high profile, with leaders of national political parties calling for a resolution. An inquiry under the Additional DIG was, therefore, ordered.
Calling for an investigation by the CID when the police themselves are involved raises the very
pertinent point that the petitioners made in the writ petition:
…under Section 299 IPC, causing death of a person is culpable homicide, whether it comes
under the exception of private defence would have to be dealt with by the Court. Therefore
police cannot themselves become complainants, prosecutors and the Judges. The case of deaths
amount to causing of murder, whether policemen responsible for such deaths can get away with
it on the ground of private defence is a question which cannot be decided by the police and
which will have to be decided by the Courts.26
In a case where two boys aged seven and 17 were killed in police firing, the Madhya Pradesh
High Court27 asked the same questions being raised in this essay:
Should the State’s conception and vision of handling a law and order situation allowing to blow
the unkind wind of winter bringing a cataclysm and catastrophe to the families, go unnoticed
and un-remedied? The crucial question that arises for consideration is whether the death caused
in the name of law and order is justified? Was it imperatively necessitous? Was it avoidable or
was it an act of gross negligence?
The Court found that the deaths had occurred due to the recklessness of the police. It asked
why—even if the police had to disperse an unruly mob—should a seven-year-old watching the scene
from the terrace be killed in police firing? The final direction of the Court was that compensation
should be given to the parents of the deceased children. Nothing was mentioned about any action
against the concerned police officers.
CONCLUSION
Whenever the issue of an unlawful assembly or use of force to dismiss an assembly or the need to use
force at all has been dealt with in the courts, it has mainly been in the contexts of two rival political
groups clashing with each other or during riots. A random search for cases of citizens protesting for
their basic rights or against State policies shows that only a few of these incidents reach the court.
Whose Life is it Anyway?
179
Therefore, precedents or guidelines emerging from inter-group clashes have to be applied to the
cases being discussed here. The law is now agreed that ‘the defence of sovereign immunity being
inapplicable and alien to the concept of guarantee of fundamental rights, there can be no question
of such a defence being available in the Constitutional remedy.’28 Using this concept, the courts
readily agree to compensation for victims, but have steered clear of directing any action against
the officials, especially with respect to the registering of criminal cases against them.
NOTES & REFERENCES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
Sections 3, 4 and 29. Indian Forest Act, 1927.
Sections 18 and 35. Wildlife (Protection) Act, 1972.
Land Acquisition Act, 1894.
The number is even larger if the forest dwellers in protected and reserved forests are counted. Sankar Gopalakrishnan.
2006. ‘The Tribal’s Fight for His Forest’, Indo-Asian News Service, 30 November.
The team consisted of Justice H. Suresh, retired judge of the Mumbai High Court, Bhushan Ojha, advocate from
Ahmedabad and Sudakshina Mukerjee, a student. ‘Terrorism Sans Terrorists’, An Enquiry into the Firing on Bhil
Adivasis in Dewas, M.P., by Indian People’s Tribunal on Environment & Human Rights, August 2001. Available
online at http://www.iptindia.org/pdf/Terrorism%20Sans%20Terrorists.pdf, accessed on 2 June 2008.
The four activists were Srilata Swaminathan, Khemraj Chowdhary, Mahendra Chowdhary and Dr Narendra Gupta.
Swaminathan, Srilata. ‘Adivasis Under Siege in MP’. Available online at http://www.indiatogether.org/stories/dewas.
htm, accessed on 2 June 2008.
Dewas District, Bagli Tehsil, Mehndikheda 2 April 2001 incident inquiry by order F29-4/2001/C1 issued by
department of home on 25.04.2001.
Himat Lal K. Shah vs Commissioner of Police, Ahmedabad and Anr. AIR1973SC87.
‘Standards and Procedures for Crowd Control’. Commonwealth Human Rights Initiative. July 2005.
Ibid.
The Adivasi struggle for land rights at Koel-Karo. Jharkhand PUCL Report on Killing of Eight Tribal Villagers in
Police Firing at Tapkara Jharkhand on 02.02.2001, PUCL Report September 2002. Available online at http://www.
pucl.org/reports/Bihar/2001/tapkara.htm.
Kanungo, Sri Biswapriya. ‘Maikanch Police Firing and Mishra Commission Report–A Misleading Exercise.’ Available
online at http://www.business-humanrights.org/Documents/Goodland-Utkal-Mar-2007.pdf, accessed on 2nd June
2008.
Mishra Commission Report, p. 203.
Ibid., p. 201.
Ibid.
Ibid., p. 205.
PUCL Bulletin, February 2005. Available online at http://www.pucl.org/Topics/Dalit-tribal/2005/kashipur-writ.
htm, accessed on 2 June 2008.
‘Police Firings–Aimed to Quash Protest’. PUCL Bulletin. June 1981.
Ibid.
Nandini, Shrimoyee and Tarunabh Khaitan. ‘Human Rights Violations: A Comparison of the Commissions of
Inquiry and the National Human Rights Commission,’ Alternate Law Forum. Available online at http://www.
altlawforum.org/Resources/lexlib/moifloppy/, accessed on 3 June 2008.
180
Seema Misra
21. The National Police Commission was set up by the government in 1977. From 1979 to 1981, the Commission
produced eight reports. These are the recommendations of the first report.
22. NHRC. ‘Revised guidelines/procedures to be followed in dealing with deaths occurring in encounter deaths’, issued on
2 December 2003. Available online at http://nhrc.nic.in/Documents/RevisedGuidelinesDealingInEncounterDeaths.
pdf, accessed on 2 June 2008.
23. CrPC. Section 176(1A) with effect from 23.06.2006.
24. State of Karnataka vs B. Padmanabha Beliya and others. 1992CriLJ634.
25. Andhra Pradesh Civil Liberties Committee and Anr vs Station House Officer and Ors. 2001(1) ALT 201.
26. Ibid.
27. Brijendra Thakur vs State of Madhya Pradesh and Ors. AIR 2006 MP 28.
28. Nilabati Behera Alias Lalita Behera (Through The Supreme Court Legal Aid Committee), Petitioner vs State of
Orissa And Others, Respondents. 1993-(002)-SCC-0746-SC.
8
Preserving Wellness and Personhood:
A Psychosocial Approach to the Child
Shekhar P. Seshadri and Kaveri I. Haritas
Do you hear
the plaintive cry
for personhood, for wholeness?
Be strong, dear system
and look with clear eye
upon these little beings…
Broken in body
and equally in spirit…
An identity
fragmented
by the desires
and callousness
of the adult world.
Be compassionate, dear system
for it is
only you
who can be the bridge
between their entitlement
and its thwarting
on a stormy night…
(Shekhar P. Seshadri)
In the legal framework, where adulthood is the minimum essential to be heard, where childhood is conceptualised conflictingly in terms of protection, invisibility and punishment, and where childhood
182
Shekhar P. Seshadri and Kaveri I. Haritas
means lack of a voice and the right to be taken seriously, children find themselves as the most
vulnerable and marginalised group, lacking the power to bargain and negotiate, to speak for
themselves and to ask for what they need. While criminal laws in India pertaining to children assert
their allegiance to the child protection and child-friendly approaches recommended by international
conventions, reality is often far from intention. Criminal laws that necessitate or include children
as actors (principal or secondary) are often regulatory and administrative in approach, and sideline
the human aspect to the anomaly of children being exposed to legal processes. It is an abnormality
of sorts that, in itself, should call for highly sensitive and psychosocial approaches and is yet ignored
in this great rush for justice. This lack of address is heightened by the piecemeal approaches to
children’s issues in the form of innumerable enactments, often disjointed from one another, that
lack a holistic and more connected approach.
A psychosocial approach to child and criminology essentially covers the body of knowledge that supports legal enforcement, social services and judicial services in their interactions
with children who may be either witnesses or victims of abuse or crime, so as to remove as far as
possible the chances of re-victimisation or secondary victimisation, and to enable the treatment,
rehabilitation and reintegration of the child concerned in society. These points of interaction
between a child and such authorities/services can be divided into three different kinds of
approaches: (a) where the law is used to remedy injustice committed against the child (where
the child is victim);1 (b) where law enforcement or judicial proceedings necessitate children’s
participation in legal proceedings (where the child is a witness) and (c) where the law is used against
the child (where the child is delinquent).
These three points of interaction expose the child to different actors in the criminal justice
system (CJS), such as police personnel, investigators, social workers, lawyers and judges, who differ
in their approach and treatment of the child. What has to be kept in mind is that the child’s very
exposure to such actors is an anomaly that is in itself further complicated by the child’s experience
which necessitates his/her exposure to the legal system. It could be a child who is required to
provide testimony in favour or against a parent, a child who has witnessed a crime, a child who
has been a victim of a crime or where a child is an offender himself or herself; that is inescapable
is that the emotional stress that a child has already undergone is thus intensified when exposed to
the legal system.
This chapter identifies these three points of interaction with the legal system, often drawing
a link between one point and another—for example, the risk that survivors (victims) of child
sexual abuse are at an increased risk of a second point of interaction as a delinquent child sexual
offender;2 arguing the need for a structural approach to applying principles of psychosocial
well-being to make the CJS as sensitive to children as possible and, most importantly, to use the
CJS as a point of treatment, rehabilitation and reintegration of children who have, due to their
experiences, suffered psychological trauma, so as to not only enable the addressing of their mental
Preserving Wellness and Personhood
183
health needs, but more importantly to reduce these points of repeated contacts, in an attempt to
reduce the number of children interacting with the CJS. While this article goes into detail about
issues such as appreciation of child testimony and judicial approaches to children’s competency,
the main thrust is on psychosocial redress as a primary approach that should guide the CJS, as
against the classical approach of justice in a court of law.
THE STATUS OF CHILDREN UNDER INDIAN LAW
The legal status of a child under the Indian law is a cauldron of contradictions shifting uneasily
between the ideal of child protection3 and universal education4 and the acceptance of existing
constraints in achieving this ideal. While law entitles a child to protection and care, it also permits
children to participate in employment. There is no uniform definition of a ‘child’ under Indian law,
and children are allowed to be employed and gain certain liberties despite being below 18 years
of age. A child in India is defined under the Indian Majority Act, 1875. Although this enactment
is more or less accepted under several other enactments,5 specific enactments apply in different
situations. A child in civil law does not have contractual ability6 and cannot contract marriage,7
but can be employed in non-hazardous industries at any age, and in factories, mines and hazardous
industries above the age of 14 years.8 Civil law and its application on children have a wide array of
issues that arise from the inability to provide for one uniform definition of a child. The interplay of
various enactments can often cause distress and injury to children who, while accepted as capable
of productive work, lack the right to ensure their own rights through legal action. For example,
children exploited under existing labour laws would have to be represented by an adult in court.
This is problematic, especially if the work is carried out by family. And then there are other laws
that envisage direct interaction between children and legal systems in terms of testimony in personal
or family law and in other civil matters. While the necessity for an interdisciplinary approach is felt
under both civil and criminal laws, this chapter will specifically deal with criminal provisions.
Under the Indian Penal Code (IPC), criminal responsibility cannot be assigned to a child below
the age of seven years, which can be raised to 12 years in a particular case if it is proved that the
child has not attained ‘sufficient maturity of understanding to judge the nature and consequences
of his/her conduct at that occasion’.9 There are several arenas of interaction between criminal
law and the child, broadly be typified into (a) protective provisions,10 (b) penalising provisions11
and (c) laws pertaining to child testimony. The issue of child testimony can be examined in all
three contexts—evidencing as a victim, witness in another case or as evidence in a case against
the child.12
This chapter will first analyse laws pertaining to child sexual abuse and trafficking, with respect
to the validity of child testimony, judicial procedure in eliciting child testimony and lacunae in
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terms of consent and responsibility. This chapter will then cover the Juvenile Justice Act, with
some detailed analyses of judicial approaches to child offenders, areas of overlapping between the
Act and other enactment and, finally, the argument of reintegration as against rehabilitation, with
some comparative parallels drawn with other approaches. This chapter will then analyse briefly
the issue of child labour, bonded labour and the penalisation of child labour, arguing in favour of
the need for the inclusion of access to health and medical services.
The conclusion will contain recommendations to emphasise the need to construct the child
CJS so as to enable the effective interlinking of various related enactments, the inclusion of health
and medical services as part of the child protection and reintegration strategy, sensitive testimonial
procedures through informed and trained police and judicial staff, a community-based approach
to juvenile justice strategy and child protection to include mental healthcare as well.
CHILD SEXUAL ABUSE
Laws that Penalise Child Sexual Abuse in India
Indian law does not specifically provide for child sexual abuse, and an action against child sexual
violence has to be brought under the provisions providing for outraging the modesty of a woman,
sexual assault or use of criminal force and rape. Actions for sexual offences against children can
be brought under the IPC, 1908 since it defines a man as a male human being of any age and a
woman as a female human being of any age. In terms of the degree of the sexual offence in question,
Section 509 of the IPC penalises outraging the modesty of a woman by:
…uttering any word, making any sound or gesture or by exhibiting any object, with the intention
that such word or such sound be heard, or that such gesture or object be seen by such a woman, or by
intruding upon the privacy of such a woman.
This provision could be used to cover a wide range of sexual offences such as eve-teasing, exhibitionism, sending or showing of pornographic material, making obscene or sexually-toned remarks,
telephone calls or sending obscene messages, and so on. Section 354 penalises sexual assault and
the use of force and could be applied to non-penetrative sexual offences. Section 375 penalises rape
but limits it to rape against female children. The explanation to Section 375 which provides that
penetration is sufficient to constitute sexual intercourse, has been interpreted by courts to limit
the provision to only penetrative sexual intercourse, and thus sexual abuse that is non penetrative
is tried under a different provision, Section 377 which provides for unnatural sexual offences.
This provision is used to penalise sexual abuse against male children and non penetrative sexual
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abuse against female children, as also homosexuality.13 The problem with this is that Section 375
provides for a minimum bar of 7 years imprisonment, which can also extend to 10 years or life
imprisonment depending on the gravity of the offence, while under Section 377 there is no minimum bar imposed. Under this provision judges are allowed to impose a sentence of either up to
10 years imprisonment or life imprisonment (which is generally restricted to extreme cases of
abuse), which means that sentences for rape against boys can be for less than 7 years. This creates a
hierarchy of abuse, between boys and girls and between penetrative and non penetrative sexual
abuse. The law has further constraints in terms of children suffering sexual abuse or rape within
marriages. The Exception to Section 375 provides that sexual intercourse within marriage if
the wife is 15 years or above does not constitute rape, while Section 376 (1) which provides
for the punishment of rape excludes sexual intercourse within marriage where the child is 12 years
or above. If the child is above 12 years, then the punishment prescribed under this provision is a
maximum of 2 years imprisonment, or fine or both.14 Thus the higher sentence under Section 376
can be provided only if the victim is female and below 12 years of age, while in the case of those
above 12 years and below 15 years, the sentence is a maximum of 2 years. This provision appallingly
permits child sexual abuse within marriage, setting the ground for the misuse of marriage as a
pretext to obtain sexual rights over children.15 This also creates an artificial difference between
children of different ages, ignoring the international definition of child as all those below 18 years
of age under the Convention on the Rights of the Child. Thus the principle detracting elements
of the rape law are its limitation to female children, its applicability to only penetrative sexual
abuse and finally the hierarchy of penalties for rape within marriage, and the lack of penalty for
rape against married children above 15 years. While the Law Commission in its 172nd report has
recommended the amendment of this provision to include penile and oral penetration of finger
or objects or any other parts of the body,16 there are several other kinds of sexual abuse that do not
involve any form of penetration and yet have the most devastating consequences on children.
While the Law Commission’s recommendation to insert a provision that specifically provides for
sexual behaviour that is non-penetrative is commendable,17 in comparison with more progressive
laws that are now defining penetration to include contact of genitalia,18 India still has a long way
to go. The Law Commission of India and the National Commission for Women (NCW) have
suggested several amendments to the existing provisions under the IPC, the Criminal Procedure
Code (CrPC) and the Indian Evidence Act to cover different cases of child sexual abuse as also to
enable child-friendly procedures.
In 1994, Samvada19 conducted one of the first studies on child sexual abuse among 348 girl
students, reporting that 83 per cent of them had experienced physical eve-teasing and 13 per cent
had experienced it when they were less than 10 years old; 47 per cent had been molested/experienced
sexual overtures, and 15 per cent among them had experienced it when they were less than 10 years
old. Fifteen per cent of these girls had experienced serious forms of sexual abuse, including
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rape, of whom 31 per cent had experienced it when they were less than 10 years old. Eighty-six per
cent of those eve-teased, 67 per cent of those molested and 61 per cent of those seriously abused had
disclosed their experiences. With an increase in the seriousness of abuse, the tendency to self-blame
also was shown to have increased, with 22 per cent of those eve-teased, 37 per cent of those molested
and 50 per cent of those seriously abused feeling self-recrimination. This tendency was shown to
increase in direct proportion to the victims’ position on the social ladder and place of residence,
with those lower on the social ladder and living in rural areas feeling more self-blame.20
Consent and Child Sexual Abuse
Consent is a growing issue of concern in child sexual abuse cases. Until recently, Section 155(4)
of the Indian Evidence Act—only recently repealed in 2004—which had assigned relevance to
the previous character of a rape victim during her cross-examination, operated against victims of
rape, including children (and prostitutes had virtually no chance of succeeding in cases of rape).
Here, it must be remembered that a substantial number of those engaged in prostitution are
children, and although this provision of law remains currently repealed, the fact remains that the
age of consent to sexual relations begins at 16 years, which leaves females between 16 and 18 years
of age vulnerable to abuse that the law can consider consensual if evidence is insufficient to
prove force. The varying ages for consent, with married children being provided a lower limit of
15 years and unmarried girls given a marginally higher limit of 16 years, raises substantial questions
in terms of adherence to international norms.
Child sexual abuse within child marriages remain hidden as child marriages are often never
prosecuted—with families supporting such marriages, children lack the power to speak, let alone
complain. The practice of child marriage for the purpose of financial gains or to mask child
prostitution is common. This practice can often remain hidden as a contravention of the Child
Marriage Prohibition Act, and not as child sexual abuse or child prostitution. The practice of
child marriage among the Muslim community in Hyderabad, where young girls are married off
to Arab Sheikhs who offer high ‘bride prices’, is often used as a ruse for prostitution. Thus, cases
under the Child Marriage Prohibition Act should be investigated in this perspective so as to identify
cases of child prostitution and trafficking that is supported by families, close or extended.
Apart from child marriages, other contexts of child sexual abuse, such as sexual abuse perpetrated
by children, incestuous abuse, prostituting and trafficking of children, sexual grooming of children,
sexual abuse of mentally or physically-challenged children, custodial sexual abuse, and so on should
also find place in the law, which should provide for a linked approach to the other enactments
concerned and to the informed handling of child victims of sexual abuse. Children who are
sexual offenders under the Juvenile Justice Act must be provided treatment and counselling, with
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reintegration efforts involving family and community actors who may have contributed to the
sexual offence. Research points out that often children who sexually offend are either reacting to
their witnessing of child sexual abuse or were themselves victims of child sexual abuse, with sexual
acting-out used as a means of identification with an abusive parent or as an expression of sexuality
that is guided by the abuse experienced.21 Thus, children who sexually offend should be treated as
victims of abuse themselves, given that children act out experiences or events witnessed in terms of
sexual offending. While the law does not provide for such treatment, this gap can be made good
through an effective treatment system within the juvenile justice system.
The rehabilitation of survivors of incestuous abuse should be linked to the juvenile justice system
in cases where restoration and separation from the abuser within the family is not possible. Support
programmes in the United States of America such as the Adult Victims of Child Abuse used by the
Office for Survivors of Crime,22 Department of Justice, created and supported by the Morris Center,
San Francisco, and similar other programmes in other parts of the world can be used to create
one here that can provide for the collaboration of non-government organisations and voluntary
organisations working on such issues with the juvenile justice system. The incorporation of such
programmes would not only ensure the continued addressing, well into adulthood, of issues which
child survivors of sexual abuse encounter, but would also provide for the formation of support
groups, thus providing safe spaces to discuss and deal with the trauma of child sexual abuse.
The psychological trauma of victimisation—and the added physical debility—is a heavy enough
burden to bear for an adult. For a child, who is also often subjected to social castration and
humiliation, it is far a more complex affair. The very essence of childhood is violated; sexual abuse
has complex and long-lasting consequences that can often paralyse the development and growth
of a child, with trauma continuing well into adulthood. While the initial effects of child sexual
abuse include fear, anxiety, depression, anger and hostility, aggression and sexually inappropriate
behaviour, the frequently reported long-term effects are self-destructive behaviour, anxiety, feelings
of isolation and stigma, poor self-esteem, difficulty in trusting others, a tendency towards revictimisation, substance abuse, sexual maladjustment and psychological problems.
Abuse incidents that involve fathers, genital contact and the use of force have been noted
to have the most negative consequences for child victims.23 Mental health research shows
evidence that children who suffer child sexual abuse are also more likely to continue to live in
abusive relationships in adulthood, to become perpetrators of sexual abuse themselves,
and to become likely to indulge in risky sexual behaviour themselves. While the symptoms of
child sexual abuse are often sought to be explained using the framework of the symptoms of
Post-Traumatic Stress Syndrome (PTSD), some symptoms are not covered by PTSD alone. Adult
survivors are found to be more likely to have problems in interpersonal relationships, alcohol
abuse or drug use, and feelings of isolation, as compared to those who have not undergone child
sexual abuse.24
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The psychological aspect is exacerbated by socio-cultural reactions to sexual abuse—insensitive
handling by family members, for instance. The victims’ need for unavailable support and guidance
could not only retard the healing but also result in permanently damaged close relationships and
negative relational patterns in the future, which could well progress into adulthood. The need for
to address psychological concerns is two-fold: one, to address the needs of the child; the other, to
support family members in their relationship with the child concerned to enable the healing process.
The issue is far more complicated when the abuse is incestuous or supported or motivated by the
family of the child for financial or other gains. It is here that referrals to psychological services are
indispensable to help the child cope with the situation.
Child Prostitution and Trafficking
Prostitution is illegal according to Indian law. The approach towards, and treatment of, prostitutes
affects to a great extent the several thousand children who are survivors of trafficking. The focus
on prosecuting prostitutes as individuals in need of disciplining and detention25 ignores the
fact that a majority of the prostitutes are survivors of trafficking, and thus victims themselves.
The approach of correction and disciplining of prostitutes—instead of restoration and
reintegration—is a criminalising approach to the issue of prostitution without addressing the cause
of prostitution and the victimisation and trauma suffered by women and children who are often
forced into prostitution.26
Child prostitution and trafficking is one of the most serious issues in India today, with a majority
of prostitutes being below the age of 18 years. The legal focus on soliciting as an offence has led
to the use of the Immoral Trafficking Prevention Act (ITPA) against survivors of trafficking,
who are most often children.27 In a startling study by the NHRC,28 a huge majority of the cases
filed under the enactment were found to be filed under Section 8 of the ITPA, which penalises
soliciting. Most policemen focus on the soliciting of customers, and the rate of convictions of
prostitutes—as against pimps and brothel owners, who are the main focus of this Act—are very
high. In order to escape prosecution for the trafficking of minors, girls apprehended in brothels,
under threat by pimps and middlemen, often overstate their age, claiming to be more than 18 years
old. Police have been known to mechanically record the age of the girl as she states it, even if she
looks unquestionably like a child. There have been cases where girls who were assessed to be majors
were found to be minors after protests by several agencies and on fresh verification. Since, the
maximum punishment specified for soliciting is six months for the first offence and one year for
subsequent offences (with a provision for bail), brothel owners and pimps waste no time in bailing
out the girls to re-traffick them right back to the same brothel or to other ones.
While there is a growing movement to decriminalise soliciting per se, the focus on soliciting in
a law that is meant to penalise trafficking is a classic example of the failure of the justice system to
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protect women and children. The major drawback in the law is that in addition to the penalisation
of soliciting, it does not provide for age verification of those arrested under Section 8. A requirement
that makes ossification tests mandatory should be included under all Section 8 arrests to help identify
and rehabilitate child survivors of trafficking, who could later be provided witness protection to
help locate and prosecute traffickers. Instead, the current implementation of the law results in the
convictions of most such minors, while the pimps who are responsible for trafficking and coercing
them into prostitution are let off the hook. Lack of mandatory ossification, teamed with a focus
on soliciting, the absence of witness protection programmes and effective reintegration methods,
result in these women and children returning to their forced profession of soliciting. In order to
prevent the trafficking of children for prostitution or other purposes, the focus should be shifted
to criminalising pimps and procurers, strengthening witness protection programmes and ensuring
effective reintegration programmes for children and women who are victims of prostitution.
Not all children in commercial sex work are trafficked, with some of them joining the profession
due to reasons of poverty and unemployment. Just as not all children are trafficked for commercial
sex purposes, with migration related trafficking also prevalent where children are lured by prospects of
finding lucrative employment in cities29 or are trafficked for purposes of child labour. Thus trafficking for
commercial sex purposes creates a double source of trauma for children. The trafficking process
involves procurement (with or without the family’s complicity), dislocation and transport, and
induction into sex work through threats, coercion, abuse and misinformation.
Subjugation to trafficking and sexual exploitation at a young age has highly-negative life-altering
emotional and psychological consequences. The emergence of the children’s own sexuality, in
adolescence, is marred by the negative experiences they face in terms of sexual and physical abuse
and their perceived lack of any way out. Early sexualisation, over-stimulation and bodily responses
to sexual experiences can result in the children’s feelings of guilt and the attribution of self-blame for
their situation. The loss of ability to trust or find and maintain long-term relationships, difficulties
or inability to form and maintain relationships with the opposite sex, tendencies to impulsively
make risky relationships, withdrawal and refusal to express themselves, disconnectedness with the
world around them, dissociation from their environment, the normalisation of the experience
of sexual abuse, self–blame, distortion of events, and so on are all reactions to sexual abuse, not
only in children but also in women. In children, however, these are heightened, as their earliest
experiences shape and define their own expectations of life, and early sexual trauma can result in
an impaired view of life and the lack of ability to perceive a way out. The sexualisation process
further affects the child’s sense of self-hood. The trauma of trafficking, sexualisation and sex work
has the potential to cause conditions such as PTSD, depression, suicide, substance abuse, and so on.
The crucial fact of how commercial sex trafficking affects selfhood and sexuality remains most
neglected wherever these effects are not recognised.
However, far from incorporating an understanding and addressing the psyche of the victims,
legal pronouncements adopt a moralistic stand. The perception of prostitution as an immoral
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profession and prostitutes as immoral and deviant for having ‘chosen’ the profession is also evident
from the judgements of the courts. The Mumbai High Court’s decision in a case under the ITPA
stated that children rescued from brothels should be treated as survivors in need of care and
protection, but that children ‘soliciting’ or ‘voluntarily’ being in prostitution should be treated as
child offenders under the Juvenile Justice Act.30 This again raises the crucial issue of consent: can
a child be capable of consenting to prostitution, which implies sexual relations, given that the IPC
provides the minimum age of consent to be 16 years? How can children below the age of 16 be
said to ‘solicit’ or ‘voluntarily’ take part in prostitution? Does the sole act of a girl who is soliciting
amount to consent? If so, does this not make such an interpretation of the law contradictory to
the position under Section 375 of the IPC?
Taking this argument further, if the primacy of Section 375 is assumed, then all children who
are rescued from brothels and pimps should be considered victims of rape. The mere appearance of
consent is not sufficient to accord consent to sexual relations that can, at best, be defined as rape.
‘Consenting’ children should, on the other hand, be provided counselling, treatment, rehabilitation
and reintegration services to right a wrong that has long victimised them.
However, when it comes to trafficking, this interpretation of law is rarely drawn. Rescued children
are often labelled as ‘prostitutes’ and thus denied their right to be considered as no more than just
children, entitled to the very same protection accorded to all other children. The problem with
this understanding is that most prostitutes are trafficked and forced into the profession, and their
inability to find a way out due to stigmatisation and exclusion from society, and their consequent
continuation to solicit, can be well interpreted as a ‘voluntary choice’. While consent should be
ruled out in cases of child sexual abuse, in the case of women entering the profession in adulthood,
which is highly marginal,31 it has to be remembered that ‘free consent’ as defined under law cannot
be divorced from the circumstances influencing it. The implementation of the prevailing laws shows
a lack of intervention models within the system that effectively address reclamation of self or the
emergence of affirmative sexuality. There is a need for the decriminalisation of survivors of trafficking
and a structured way of rehabilitating and reintegrating children rescued from brothels.
Linking Child Trafficking with Child Sexual Abuse Laws
The fact that almost all children who are trafficked for sexual purposes are so subjected against their
will, thus making them victims of child sexual abuse (with a higher degree of affect as compared
with children less frequently violated), must be reflected in the interpretation and application of
the law pertaining to trafficking. All children rescued from brothels and pimps must be treated
not as prostitutes who solicit—and, therefore, as offenders—but more as victims of sexual abuse:
sexualised, traumatised, abused, exploited and instrumentalised to serve the needs of pimps, and
prostitution gangs and rackets. This approach should not be applied artificially, making a distinction
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between those below 16 years of age and those above, but must address women and children
‘prostitutes’ more as victims and less as willing individuals who take up prostitution out of free
consent: it must apply a more realistic definition of the term ‘free consent’ given the background
of past abuse, victimisation and sexualisation.
While the process and experience of being trafficked is traumatic by itself, and so is child
sexual abuse, the combination of the two is a negatively additive one. It is analogous to losing a
limb and a loved one in a natural disaster. Furthermore, for the child in question, the fact that
trafficking for commercial sex purposes involves sexuality in its most problematic context, it adds
to the severity of the trauma. This is then compounded by the child’s realisation that the process
of trust in relationships has also been compromised and that exit routes are obscure. Thus, there
are multiple sources to the impact generated that need to be accounted for in interventions. It is
here that counselling and mental health services can help at the case level, helping deconstruct
the lives of those who are arrested under the Act and in sensitising service providers such as law
enforcement, and judicial and court officers.
Child Labour
The Child Labour (Prohibition and Regulation) Act, 1986, is a contradiction because it claims
to selectively prohibit certain types of child labour while legalising others with some minimal
regulations, which are, for the most part, unimplemented.32 The Act was enacted to replace the
earlier Employment of Children Act, 1938. The present enactment provides for a schedule of
hazardous occupations and processes where children below the age of 14 years are prohibited to
work, and removes some of the difficulties of the earlier enactment which was restricted to five listed
hazardous occupations.33 While the definition of a ‘child’ as below 14 years seems to be in keeping
with the Constitutional mandate for primary education, the provisions of the Act seem contradictory
to the right to education that every Indian child is assured under the Constitution of India. The
child labour policy is, thus, in direct contradiction with education policy; it reinforces theories of
vested interests and politics that enable the continuation of this crime, which intrinsically strikes
at the very future of society—the child. It is pertinent here that inequality and subjugation—in
terms of class, caste, gender and, in the case of a child, age—contribute to supporting the dominant
groups that benefit from a perpetuation and worsening of the issue.
What remains questionable is the lack of commitment to ensure not just physical health,34 but
the mental health, well-being and development of a child in terms of access to education, health
and a decent standard of life—the minimum required to enable a child to choose and pursue his/her
future. The recent government notification prohibiting the employment of children as domestic
labour (which was earlier restricted only to government officers) is a major advance in resolving
the issue of child labour, given the harshly exploitative nature of child domestic labour and the
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increased vulnerabilities of domestic help to violence, abuse and exploitation in financial, mental
and physical forms.35
The most obvious danger of bonded labour—or servitude of a similar form, such as that of child
domestic helpers—is the vulnerability of children to physical and sexual abuse by the very nature
of their work, which requires a degree of proximity with abusers. Since the enactment does not
specifically provide for such kinds of abuse, the provisions of the IPC that penalise the causing of
grievous bodily hurt and those pertaining to sexual abuse would have to be applied. The NCW
has suggested that a clause be included providing for a punishment of up to three years36 of those
found to have sexually exploited women or children in servitude. This blank suggestion does not
take into account that the penalty suggested is lower than that provided under the IPC for rape.
With a specific provision penalising the sexual exploitation of bonded labourers, this suggestion
will only serve to reduce the sentence of those who have sexually abuse bonded labourers, preempting the courts from applying the provisions of the IPC. While both these forms of labour
now stand abolished, the rehabilitation of children rescued from these types of servitude should
address such forms of abuse. In terms of the application of the law and the severity with which
child labour cases are dealt with in respect to the penalties imposed by courts against the employers
of child labourers, the Indian response suffers from a casualness that is due to lack of political
will and commitment to tackle the issue of child labour combined with other more pressing
economic preoccupations. This slapdash approach can also be explained by the view that the heavy
penalising and appropriate implementation of the Act would result in more damage than good,
rendering children more vulnerable. The fact that children are most often the principal providers
of families makes the situation worse, which contributes to the continuation of the vicious circle
of child labour.
Since the enactment allows the employment of children above the age of 14 in hazardous
industries, the health effects of such employment on children should have ideally been taken into
account; the law should have provided for regular health checkups, free health insurance, and
stringent penalties and compensation in case of health hazards caused due to the non-implementation
of the provisions of the Act, including enabling safe conditions of work and essential equipment to
prevent deleterious health effects.37 The absence of such provisions results in higher and increasing
medical costs to the State, apart from higher disease and mortality rates. The respiratory ailments
suffered by children working at Sivakasi, the high rates of tuberculosis suffered children who roll
beedis (small cigarillos rolled out of the leaves of the tendu plant), the emphysema that afflicts children
working in the carpet industry, the burns suffered by child silver workers, and so on are the health
costs that children themselves have to pay for, along with the suffering they are bound to endure for
the rest of their lives, and with little or no chance of undergoing qualified medical treatment.
The evident discord between the Act and the Constitutional provision of a right to education
is of the utmost importance because it creates inequality between children who have the means to
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an education and those who do not, thus ensuring the continuance of child labour. The issue of
child labour needs to be approached in the perspective of the inequality that denies a large number
of children the basic minimum to choose his/her future: a child bound and tied by circumstances,
while physically healthy, might still be intellectually retarded due to lack of opportunity.
The violation of the Act can result in either imprisonment or fine, while repeated offences are
penalised with imprisonment being the only option.38 Forced labour is penalised under Section
374 of the IPC with a maximum punishment of up to one year or fine, or both. Kidnapping a
child for the purposes of putting him or her to beg is punishable with imprisonment of up to
10 years and fine. Under the Bonded Labour System (Abolition) Act, 1976, extraction of bonded
labour is penalised with imprisonment of up to three years and fine of up to Rs 2,000. There are
no specific provisions for child bonded labour: the punishment specified applies to both children
as well as adult bonded labourers.
The several obvious obstacles in implementation—since the largest number of child workers are
found in the unorganised sectors of the economy—including regular supervision of maintenance of
records, adherence to time regulations (fixing the number of hours of work and work intervals every
three hours), determining the age of the child (under Section 10 of the Act, which is expected to be
carried out by the inspector), and so on, are difficult given the number of establishments that employ
children as compared to the number of inspectors authorised to enable the implementation of the
Act.39 The maximum number of hours and rest breaks provided by the Act are rarely implemented,40
and with courts taking a lenient view of cases filed under these enactments, it is not surprising that
child labour is here to stay. While explanations for lenient implementation can be explored in
the ‘vested interests’ theory and that the economics of child labour supports a substantial part of
the Indian economy, the approaches taken by the courts of law not only reflect this leniency but
also highlight lacunae in evidencing. The application of proof beyond reasonable doubt requires
a high degree of evidence, which is almost impossible to provide in cases of child labour. To begin
with, the determination of age itself is a huge task, and with the courts requiring a high standard
of proof, it is not surprising that the conviction rate under these enactments is abysmally low. A
more realistic application of the standard of proof in such kinds of cases is essential to implement
the enactment, lest it remain on the books with no potential for being properly applied—such as
is happening today.
Finally, the high risk of exploited child labourers of turning to delinquency should not be
ignored. Financial exploitation resulting in extremely low standards of life can push children who
are already vulnerable to other pressures such as group or gangster influences on the street, setting
them up for a life of delinquency in which habitual offenders use crime to feel a sense of control
over their lives. Aggression is often a survival tactic on the street. Child psychology recognises that
internal distress can present itself as acting-out behaviour. Thus, not all ‘delinquent’ behaviour is
delinquent in the literal sense of the term. They are often adaptive behaviours to both external and
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internal provocations and need to be handled with sensitivity instead of merely being ‘controlled’.
While the Act shows limited concern for the physical health effects of violence,41 the addressing
of the psychological effects seems to have been sidelined. In order to address the cause as a whole,
and not in a disjointed fashion, the issue of child labour has to be seen not just as that of child
labour alone but as a potential for increased risk of ‘delinquency’ and violence.
Discipline and Punish
All the activity of the disciplined individual must be punctuated and sustained by injunctions whose
efficacity (efficacy) rests on brevity and clarity; the order does not need to be explained or formulated;
it must trigger off the required behaviour and that is enough. From the master of discipline to him
who is subjected to it, the relation is one of signalization: it is a question not of understanding the
injunction but of perceiving the signal and reacting to it immediately, according to a more or less
artificial prearranged code.42
There is a thin line that separates discipline and punishment, the former referring to a process
of negotiation to ‘inculcate’ ‘appropriate behaviour’, and the latter to the consequence of being
undisciplined, with retribution as the primary component. Discipline is more commonly used to
describe an education of sorts by the family (while institutionalisation, in the form of education,
religion, social and cultural institutions, also lends to a certain kind of disciplining of individuals
in society), while punishment is used both in the personal context of a parent–child relationship as
well as the context of the State and the governed, with the State appropriating the ‘parens patriae’
responsibility. The separation of punishment by a parent and punishment by the State is important
to analyse what exactly constitutes, in law, a delinquent action for which a child can be punished.
What are the range of crimes in terms of the level of criminality involved for which the Juvenile
Justice Act, 2000 is applied? This raises the problem of some overlapping of these two concepts
of discipline and punishment because punishment for not displaying desired behaviours can sometimes be problematically defined as delinquency. For example, truancy, public nuisance43 and other
minor offences such as vandalism,44 and so on, can be used to harass street children, thus increasing
their vulnerability to arrest under the juvenile justice laws.
Explaining Delinquency
Delinquent behavior, viewed as an expression of defenses and devices in extra-legal ways, is purposeful,
just as is non delinquent behaviour. Its purpose is of course to attain greater emotional comfort.…
Hostility, identification, displacement, projection and denial are some of the most common defenses
encountered in either delinquent or non delinquent individuals.45
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Scientific criminology shows that criminal behaviour depends not only on volitional elements
and rational decisions that can be suppressed through the threat of penalties but also on
other factors such as social ones: ineffective child-rearing, school failure, unemployment, drug
trafficking, strains between social groups, criminal subcultures; individual factors such as low educational level, aggressive tendencies, lack of occupational skills, drug addiction, frustration, beliefs
and criminal values, egocentrism, impulsiveness and the lack of a social perspective. In particular,
family is shown to play a highly crucial role in the risk of delinquency, in terms of the inefficient
or lack of adequate parenting skills. An extensive study conducted by Travis Hirschi46 in the US
as to the causes of delinquency found that the number of children’s self-reported delinquent acts
was powerfully influenced by their attachment to the parents, communication with the father and
supervision by the mother.
Social class and the influence of peer groups, long thought to be predictors of delinquency,
pale in comparison with family factors. A variety of investigations reveal that the absence of discipline, problem-solving, monitoring and support that are central to parenting skills is related to
delinquency.47 With changes in society in terms of new issues that we are forced to deal with today,
and the resultant change in the role and status of children today as compared to children a few
decades ago, juveniles today face more complexity in terms of their maturation to adulthood.48 The
process of attaining adulthood can now be said to have been prolonged and complicated by newer
issues such as alcoholism and drug addiction and, in the case of street children, substance abuse.
In the Indian context, apart from family and societal factors, the deprivation and poverty that
children are forced to suffer during their very early years has to be borne in mind while applying
legislations. In a majority of these cases, the socio-economic circumstances of the child concerned
lend largely to the crimes they are charged with. Street children and children from poor families
form a large majority of children in conflict with the law. The psychosocial repercussions of acute
poverty, discrimination (caste, class and gender-based), violence, abuse and exploitation are obvious
causes of delinquency. Thus, the very act of punishment involves a breach of care. The State not
only abdicates its responsibility by its failure to provide a safe and conducive atmosphere to enable
their development (as parens patriae), but defeats it through punishment because punishment
not only means an abdication of State responsibility, but, more importantly, a strong rejection of
their existential reality.
Structural inadequacy in the protection and care of children is the principal cause of
delinquency—in that the lack of intent or inability of the State to provide an atmosphere free
of inequality, discrimination, poverty, exploitation and abuse results in higher rates of juvenile
delinquency,49 which continues into adulthood and reproduces itself in cycles of criminality, partly
due to its own dynamics and partly through a reinforcement of State inaction, thus leading to the
creation of a group of individuals called ‘delinquents’. Child labour, child prostitution and trafficking
and abuse are causes, results and supporting factors of delinquency, in that exploitation, abuse,
poverty and abandonment (abandonment by both family and State) push children to delinquency.
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Acts of delinquency are initially resorted to out of self-defence, frustration, anger, rebellion and
helplessness, and are reinforced and become chronic ways of life when they satisfy the child’s need
to feel in control, to feel powerful, and, for once, not helpless.
Juvenile delinquency can range from minor acts of non-conformance to public rules such as
theft, drinking, eve-teasing, watching adult movies, and so on, and are often triggered by group
dynamics and peer pressure. A majority of young people commit some kind of petty offence
during adolescence without this turning into a criminal career. Non-conformance to social norms
and public laws is a normal process of the maturation and growth process and tends to disappear
spontaneously. A majority of juvenile offences are committed by juvenile groups that are often based
on social cohesiveness, hierarchical order and a certain code of behaviour based on the rejection
of adult values and experience.50
Juvenile Justice
The Juvenile Justice Act of 2000 provides for juveniles in two categories—children in conflict with the
law and children in need of protection. While the Act claims to have adopted the provisions of
the Convention on the Rights of the Child, 1989, the United Nations Standard Minimum Rules
for the Administration of Juvenile Justice, 1985 (The Beijing Rules), and the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (1990), it is still lacking in several areas. Among
them is the non-inclusion of mental health knowledge/learning/research and personnel to guide
the handling and treatment of children in courts or before the adjudicating authority and in the
special or observatory homes established under the Act. While there are undoubtedly some basic
improvements of the earlier law of 1986, such as the establishment of a Special Juvenile Police Unit,51
the requirement for magistrates on the Juvenile Justice Board to be trained in child psychology
or child welfare,52 the provision facilitating adoption of children in need of protection by a wider
range of persons,53 and so on, the enactment still fails to address crucial conceptual issues of juvenile
justice and refuses to engage with law reform in other parts of the world—apart from, of course,
a failure to conform to international human rights standards.54
Adjudicating Authority
The formation of a board consisting of two social workers and one magistrate is a positive step in
the direction of decriminalising the implementation of the law. One of the chief concerns of the
implementation of the CRC is the:
…absence or insufficient number of judges who have received training where criminal courts
are applying juvenile codes, the practice of a number of states reveals a tendency for the judges
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to apply juvenile law in a way which is strongly coloured by the outlook of a criminal judge and
without paying heed to the child’s developmental entitlements.55
Article 40(2)(b) proposes a competent independent and impartial authority, or judicial authority,
thus accepting all bodies of an adjudicatory nature that have a responsibility in the juvenile justice
field without necessarily being a judicial authority. The change in the constitution of the board, is
accompanied by more liberal bail procedures, the use of the reprimand technique (which is similar to the
use of diversion in the American courts) in an attempt to use alternative methods of addressing offences
that are minor and not serious in nature, the lack of disqualification so as to decriminalise and the
protection of the privacy of the child by refusing to provide identity information of the child
concerned.
Strategies to Prevent Juvenile Delinquency
Crime—not restricted to juvenile delinquency—reduction strategies can be classified in the
developmental, community, situational and criminal justice prevention categories.56 Developmental
prevention refers to interventions designed to prevent the development of criminal potential in
individuals; community prevention refers to interventions designed to change the social conditions
and institutions that influence offending in residential communities; situational prevention refers to
interventions designed to prevent the occurrence of crimes by reducing opportunities and increasing
the risk and difficulty of offending; and criminal justice prevention refers to traditional deterrent,
incapacitative and rehabilitative strategies operated by law enforcement and CJS agencies.57
While the Indian legal system and criminal justice policy rest largely on the latter two components, it is essential to invest equally in programmes that explore the former two approaches of
developmental prevention and community prevention programmes. Developmental prevention
programmes are greatly based on schooling systems that include programmes that cover issues
such as parent training, anti-bullying, mentoring and skills training. Such efforts that especially
target children in younger age groups, who are more receptive to counselling and psychological
interventions,58 are shown to reduce offending and antisocial behaviour.
Addressing Psychosocial Needs of Sentenced Juvenile Offenders
While it can be difficult to conceive the addressing of criminal behaviour that is linked to community
or social settings involving other individuals, unless it is done in collaboration with organisations
and social service providers who work closely in such settings, more individual aspects such
as education, occupational orientation, drug or other substance addiction or more psychological
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issues can be addressed with access to counselling and mental health therapy as a part of the strategy
to address crime. In six European countries, the use of behavioural and cognitive behavioural
models of treatment in juvenile prisons, adult prisons and in the community in a study of treatment
programmes59 showed positive effects in 87 per cent of the cases and a reduction in re-offending
(scientifically termed ‘recidivism’) by 12 per cent, with the greatest effectiveness in juvenile centres
and juvenile prisons and the least effectiveness in adult prisons.
It is a well established principle that the roots of adult criminal behaviour can be traced to
hostility and aggression in childhood, which along with other antecedents of criminal behaviour,
are socialised and controlled by the family.60 Thus the Multi Systemic Therapy and Functional
Family Therapy models can be used to work with juvenile delinquents, youth offenders (youth,
meaning those between the ages of 15–30 as per the Youth at United Nations,61 though at the
domestic/national level this differs from country to country) as also convicted offenders (juveniles
and youth) to prevent re-offending and to enable successful reintegration within family and community settings.
Adolescent substance abuse is also associated with delinquency and behaviour problems—the
risk factors for substance abuse are very similar to the risk factors for delinquency. Since low parental
involvement, poor family communication and low family cohesion are related to substance abuse,
a direct relationship can be drawn between levels of family dysfunction and levels of adolescent
substance abuse.62
Efforts to change family behaviour have been shown to reduce delinquent behaviour such as
re-arrests, re-offending/recidivism and truancy.63 While these therapies rely on trained psychiatric
professionals, the use of models such as the Parenting Wisely model,64 an inexpensive family-centred
intervention that is not dependent on social service personnel and can be replicated in communities
without training to service providers, can offer a partial solution to family-based issues.
Another aspect of juvenile delinquency is ‘correction’ or, rather, prevention of re-offending, so
that children do not continue the pattern of offending into adulthood. While the CJS in India
is geared towards prevention of re-offending through the use of deterrent strategies, the lack
of effective correctional services for juveniles and youth offenders increases the risk of a large
percentage of these children and youth becoming habitual criminals.65 But the cost of crime can
be reduced if effective strategies are put in place in a multidimensional approach to crime and
delinquency. Correction or treatment facilities play an extremely crucial role in the case of child
sex offenders, where sexual abuse or exposure to such abuse are part of the principal causes of
delinquency, and which, due to the nature of the deviance, puts the children at a very high risk of
becoming habitual sexual offenders into adulthood. Many recent studies indicate that a significant
number of adult offenders began their deviant sexual patterns before their 18th year; a significant
number among them committed their first offence between the ages of 12 and 15.66 Where sexual
abuse is already being committed by an adult or adults in the family, there is an increased danger
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of sexual abuse occurring among the children themselves. Boys who grow up in families where
siblings have been abused, even if they have not been abused themselves, may know about it or
have witnessed it. Out of identification with the abusing father, the boys are at risk of becoming
abusers themselves.67 The resultant sexualisation of children and inappropriate sexual behaviour
has to be addressed through the use of psychotherapy and specific programmes to help children
deal with the effects of abuse, that may have become a part of their behavioural pattern, more so
in the case of younger children.
Rehabilitation through Custodial Care vs Reintegration through
Community Involvement
The separation of children in need of care and protection from offenders has been achieved in the
Juvenile Justice (Care and Protection) Act, 2002 enactment68 however, the issue of confinement
remains. With growing evidence of societal factors as contributors to delinquency, the Act has chosen
to continue criminalising both offenders as well as abandoned or neglected children, maintaining the
individual responsibility approach towards crime.69 The effectiveness of confinement as a method
of ‘rehabilitation’ is increasingly being questioned, as is ‘rehabilitation’, which is commonly used to
attribute sole responsibility to the child, who can be removed from society for treatment and, once
restored, released.70 A commentary on the travaux preparatoires of the CRC shows that some
delegations including Venezuela, Norway, Senegal, Italy and the United Kingdom pointed out that
given the varying national legislation, the word ‘rehabilitation’ might cause certain problems. After
intervention by the representative of Italy who proposed that the words ‘reintegration’ or ‘social
reintegration’ could be used instead, it was subsequently agreed to use the word ‘reintegration’.71
However, the Act continues in the vein of confinement, not only posing the question of whether
the State has adequate resources and is able to support the Special and Observatory Homes prescribed under the Act, but, more importantly, also raising the issue of the State’s refusal to adopt
more progressive approaches to juvenile justice, despite their increasing success recorded in other
parts of the world. The power of the Juvenile Justice Board to order a child to be sent to a Special
Home for a minimum period of two years for a child of 17–18 years of age and, in the case of
other children, until they cease to be juvenile, is highly questionable and contravenes Article 37(b)
of the CRC.72
One of the chief drawbacks of the enactment is the provision for children convicted under the law
in which those above 17 years of age are required to be sent to a home for not less than two years while
those below 17 years are to stay in the home until they complete 18 years. While a proviso provides for
the powers of the Board to reduce the period of stay in a home on the basis of a social investigation
report, this procedure is essentially envisaged at the time of sentencing; it is unclear if this provision
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can be applied at a later point of time to review cases of children who have already been directed
to stay in a home. There is no provision which provides for a revision of orders from time to time,
which should have been provided for in the interest of the reintegration of the child. The rigid
minimum sentence of stay in a home until the age of 18 and for a minimum of two years does
not provide the Juvenile Justice Board the flexibility to exercise lesser sentences and to also review
cases of children already committed to homes. A more periodic review framework is crucial to the
management of a juvenile justice system, the lack of which can act against the very intention and
objective of the Act.
If included within the framework of the Act, a provision for a regular review, guided by mental
health professionals, can guide the assessment of the readiness of children to be reintegrated, thus
resulting in confinement only of severe cases and also reducing the burden of the State in providing
and maintaining Special Homes. The need for the involvement of mental healthcare providers is
stressed in Part V of the United Nations Rules for the Protection of Juveniles Deprived of their
Liberty, which provides that personnel in the juvenile justice system should include specialists
such as counsellors, psychiatrists and psychologists employed on a permanent basis73 and also in
Article 22.174 of the United Nations Minimum Rules for the Administration of Juvenile Justice
(the Beijing Rules).
Chapter IV of the Juvenile Justice Act, 2000, defines rehabilitation and social reintegration in
a limited manner providing for only four methods of reintegration: (i) adoption, (ii) foster care,
(iii) sponsorship and (iv) sending the child to an after care organisation. Foster care is further limitedly
defined to mean a temporary placement for children who are ultimately to be given for adoption.
Thus it is evident that reintegration has been designed to apply only to children in need of care
and protection, whose parents are unable to take care of them, with no provision for reintegration
of delinquents who are deemed fit to be sent back home. Section 9(3) of the Juvenile Justice (Care
and Protection) Act, 2000, provides that the State Government may provide for the standards
and various types of services to be provided which are necessary for ‘resocialisation’. However the
term ‘resocialisation’ may be used rather restrictively, focussed only at the child while ignoring the
environment and stimuli that surround him/her. On the other hand, ‘reintegration’ is a wider
term that includes both internal and external factors. Yet, the law has not adequately provided for
interim and post detention reintegration. Children once sentenced to a period of confinement
have no way of being reintegrated back into their homes even if within the period of confinement
they are sentenced to, they are competent to be reintegrated. Detention for long periods of time
with no follow up or revisiting of the case may lead to other complications, such as, estrangement
from the family, thus making it more and more difficult for the child to go back into the family
and community post detention. There is no clear conception of a reintegration plan to reinsert
these children into social and familial environments that may have caused delinquency in the first
place. The Act also lacks guidance on parental visits/family reunions and child-parent interactions,
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leaving this aspect to the States to regulate, thus increasing the chances of highly restricted visitations.75
This combination of confinement, restricted visitation, stigmatisation and resultant disconnection
from family and community could increase risk of repeated offending, thus contradicting the very
objective of confinement. Thus, reintegration has to not only be conceived at the initial stage but
even after confinement, based on the progress of the child.
Method to Ensure Effective Reintegration
A partnership with mental healthcare providers, counsellors, social workers, child rights workers
and NGOs could enable reintegration efforts by mobilising family and local communities to
participate in and implement sanctions for the reparation of offenders in local community settings.
The concept of restorative justice used by the US Juvenile Justice System, where the addressing
of juvenile justice goes beyond treatment or punishment of the offender and actively involves the
community or neighbourhood, is one example of wholistic—as against retributive—address.76
Making parents/relatives or guardians of the child share responsibility for the offending behaviour
can also be used as a strategy to help support reintegration efforts.77 Children in need of care and
protection—the category of which has been expanded to include victims of armed conflicts, natural
calamities, civil commotions, children who are found vulnerable and likely to be inducted into
drug abuse, and so on—would be harmed if treated within the custodial framework, with confinement serving to make reintegration/restoration more difficult.
While Section 39 of the Act provides for restoration as the chief aim with respect to children in
need of care and protection, this reinstatement has to be sufficiently informed and well planned, a
task that no adjudicatory authority can carry out by itself. In the case of children who are victimised
by their own families, such as child prostitutes or child labourers or in the case of incest and so on,
reintegration without professional follow-up on the groundwork with families and communities
can be harmful to the child. On the other hand, the confinement of a child who can otherwise
be immediately reintegrated would also go against the interests of the child. The suggested
partnership for reintegration can, thus, be an important tool to facilitate the process of reintegration
through direct work with families to analyse the reasons for neglect and abandonment, work with
communities to identify and address local issues and establish links between communities and local
organisations, enabling both follow-up and the long-term process of reintegration.
This model of reintegration can help tackle the issue of financial support to homes under the
Juvenile Justice (Care and Protection) Act, 2000, which, given the minimal funding, has resulted
in a prison of sorts rather than a place of protection.78 Advocating interventions in the juvenile’s
home environment, extending responsibility of offending behaviour to parents or relatives and
the increasing reliance on integration and reparation is now increasingly accepted in Europe as a
more efficient and cost-effective method to tackle delinquency.79 It is crucial to recognise that the
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juvenile justice system cannot independently tackle the system without the active involvement of
family, school, workplace and the local community, and that community sanctions are far more
relevant and effective in approaching the issue in its totality.
It is also necessary to identify juvenile delinquency as a fallout of dysfunctional families. The
involvement of the family and the attending to issues within and around the home that may have
contributed to delinquency, abuse or neglect are non-negotiable in ensuring a complete addressal.
While the enactment conceives of restoration within the family as rehabilitation, it lacks specific
guidelines and approaches to dealing with dysfunctional families. The Intensive Family Preservation
Program adopted by the juvenile justice system in the US is one example of such a programme
where the family as a unit and the issues within it are addressed to ensure that there is no recurrence
of delinquency.80
Sensitive Police, Judicial and Adjudicatory Functions
With respect to an informed treatment of children in police stations, courts, juvenile systems and
homes, the need to have specialised and trained professionals to deal with delinquency issues has been
prescribed for in the CRC, which provides that children shall be treated in a manner that takes into
account their needs at that particular age.81 The appointment of staff in the juvenile justice system,
including those in Special Homes, Observation Homes, Aftercare Homes and the Special Juvenile
Police Unit, should be guided by a sound screening process. The administration and management
of juvenile justice systems should, thus, reflect the partnership of respective stakeholders suggested
above, enabling the addressing of each child’s individual needs as well as guiding the services to
be provided by such institutions. This bank of knowledge and expertise-in-partnership could also
be applied to deal with issues of training the police, the court and adjudicatory staff, creating a
structure that includes regular training programmes and assessing the knowledge and capacities of
those working in the juvenile justice system. The creation of manuals and training materials can
draw from a variety of experiences and approaches, The Juvenile Court Training Curriculum used
by the American Bar Association is a noteworthy example: it provides a comprehensive background
on adolescent behaviour, the risk factors that lead to chronically aggressive behaviour, guidelines
to enable understanding of mental health evaluations, strategies for interviewing children and
other witnesses and guidelines to understand children with disabilities which affect their ability
to comprehend, learn and behave.82
The ambit of the juvenile justice system should also encompass prevention programmes, with
the thrust of research being on exploring the risk factors that precipitate aggression, substance abuse
and delinquency in children. Research and scientific work on models of delinquency and youth
crime prevention should be part of the strategy to deal with delinquency issues and identify areas
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that require attention, on the basis of which future work can be guided within the system. The
involvement of institutions in this effort will not only help understand the various facets of the
problem, but will also provide the necessary information to guide juvenile justice policy. Part VI
of the United Nations Rules for the Prevention of Juvenile Delinquency (Riyadh Guidelines)83 lays
down in detail the need for such evaluative research for improvement and reform purposes.84
A multi-pronged institutional approach to the prevention of delinquency through State and private educational systems, youth groups and movements, in order to educate children on juvenile
justice and delinquency issues and the various services available to help them and young people in
difficult circumstances, can be helpful in the pre-delinquency stage. Children and parents of children
with more complex issues of exclusion—such as sexual minorities and disabled children—should
be provided with specialised services and programmes in the form of training, community-based
awareness programmes, and so on, which will help them deal with socio-cultural issues and enable
them to overcome emotional issues.
CHILD TESTIMONY AND THE LAW85
The Validity of Child Testimony
There are several issues pertaining to the validity and use of child testimony, and while most of these
issues are subjective to the age of the child involved, they are still very important for a court that
relies on his/her testimony. A child’s understanding of what is ‘truth’ and his/her role in a particular
case is crucial in deciphering the reliability of the testimony that he/she provides. Apart from the
truth of a particular statement, the manner in which a child is questioned can also influence the
veracity of the testimony adduced. Due to their age and lack of experience, the testimony of children
can be limited by several such factors. The knowledge of such limitations is essential to the decision
on whether or not to rely on the child’s evidence. In this regard, the position of the law also reflects
incertitude. Section 118 of the Indian Evidence Act, 1872 states:
All persons shall be competent to testify unless the Court considers that they are prevented from
understanding the question put to them, or from giving rational answers to those questions,
by tender years, extreme old age, disease, whether of body or mind, or any other cause of the
same kind.
The interpretation of this law allows the use of child testimony unless the child is unable to do
so; but it does not specifically provide for a particular level of credibility to be assigned to child
testimony, in terms of its appreciation with regard to other evidence or the lack thereof.
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The ability to provide testimony is essential to determine its validity. The developmental and
general cognitive prerequisites of giving testimony are referred to as ‘witness ability’. They comprise
perceptual functioning, memory and language skills, and the ability to understand the task of giving
testimony.86 Lack of these faculties may impede very young children or demented persons from
giving testimony.87 Whether children as a group are competent to provide testimony was an issue
that was extensively researched in the early 20th century. Later research in the 1970s and 1980s
moved on to specific credibility and accuracy errors.
The principal arguments against child testimony are that of error of omission—the limited
nature of their memory: that the quantity of exact details that children include in their statements is
significantly inferior to that by adults; and the argument of the error of commission—their incapacity
to distinguish fact from fantasy—which would result in their statements being contaminated by
allusions to facts which did not actually occur;88 and, in the same way, it is claimed that children
are more suggestible than adults. While research indicates that children spontaneously give less
exact information than adults,89 there is little evidence that compares children’s evidence with that
of adults with reference to both the error of omission as well as the error of commission, keeping in
mind that it is not only children who are said to suffer from these errors, but adults as well.
In terms of the error of commission, the process of discrimination between reality and fantasy is
called ‘reality monitoring’,90 and developmental research indicates that children are marginally
less competent compared to adults in the process of reality monitoring.91 In terms of accuracy in
describing events, research suggests that while adults give more complete reports than children,
they do not differ in accuracy. In terms of accuracy in the attribution of causality, research indicates
that both adults and children incorrectly report a causal relationship that does not actually exist,
with children being more correct while acting out the scene when compared to providing verbal
reports, which suggests that deficiencies in giving evidence might be partially due to lack of verbal
abilities and not due to perception or memory.92
This indicates that both adults and children can be mistaken in their testimonies, with the risk
of children being more vulnerable to such mistakes being slightly higher. On the other hand, the
use of non-verbal approaches could enable verification of evidence provided, especially in cases
where the child’s testimony is uncorroborated. Bearing in mind the inherent drawbacks of child
testimony and the parallel need for the same, especially in cases where the child is a principal or only
witness, international approaches to child testimony are progressing towards improving methods of
evidencing and appreciation of evidence.
However, the Indian scenario lacks of scientific approach to the appreciation of child testimony.
Judicial interpretation has largely guided the appreciation of child testimony. While credibility
has been assigned to child testimony as principal evidence that can form the basis of convictions
in serious crimes,93 the majority of case law insists on corroboration of the evidence,94 despite the
progressive international consensus (and action)95 which asserts the need for doing away with
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the need for corroboration, given that modern psychological research invalidates the common
assumptions of unreliability of child testimony as compared to adults.96 The use of methods such as
cognitive interview techniques as compared to standard police interviewing techniques can improve
the quality of eyewitness testimony,97 which can be especially crucial in cases where children are the
only witnesses. The cognitive interview method was developed to deal with the lack of training of
police personnel in investigating methods (used with both adults and children). The method was
used to aid interviewing officers by equipping them with mnemonic devices to assist witnesses to
recall his/her experience/s in greater quantity and with better reliability.98 Improved or enhanced
versions of such tests can also be used to increase the accuracy of testimony.99
As evident from the above paragraph, the preponderance of research in the area of credibility
of child testimony is largely Western in origin. This depicts the highly developed Western system,
where research has been conducted in all related institutions, within judicial and police systems,
by state institutions as well as in effective collaborations with independent or non-governmental
organisations or research institutes. In order to review existing systems and to invent and apply new
approaches adapted to evolving societal paradigms, the research component has to be fortified both,
through in house departmental research as well as through independent agencies—a phenomenon
that is still to develop in the Indian scenario. However the advancements already made in the
Western world can provide a basic foundation to guide future work in the Indian system.
The Indian Legal Scenario
In this background of worldwide developments in which pioneer research has been conducted in
Germany100 and the US to guide child witness credibility and procedures in legal systems, only
recently has the Indian legal system begun to acknowledge the need for such procedures. While
judicial pronouncements have recently stressed the necessity for introducing child-sensitive and/or
child-friendly court procedures in cases of child sexual abuse, this has not been extended to child
testimony where other crimes are concerned. Also, while judicial procedures have been the subject
of these debates, police procedures—in terms of filing of complaints, inquiries and investigations
of witnesses—have not yet received any emphasis.
The first contact between the child and the criminal law system is at the point of filing the
complaint, or the First Information Report, at a police station, an interface that has to be made more
child-friendly to ensure that children feel secure, safe and unthreatened, which the present system
unfortunately does not ensure. This is largely due to the fact that there are no separate provisions
for child testimony, and the regular provisions that apply to adult complainants and witnesses under
the CrPC are also applied to children. There are several investigating powers that the police enjoy,
including the power to conduct an inquiry into cases without permission from a magistrate.101 This
blanket power eventually means that the police can interrogate a child witness or a child victim of
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a crime in a manner that can emotionally harangue the child, resulting in the child retracting prior
statements or evidence, or even withdrawing the complaint itself for fear of further harassment
from the police. This procedure can be applied to all cognisable cases and may not, hence, only
apply to cases of child sexual abuse but also other crimes as well.
The problem with this method of recording evidence in terms of the validity of the statements
made by a child is that an inquiry by untrained police personnel can be counterproductive. In
the case of younger children, communication can prove to be a major obstacle. What younger
children say can be rendered highly limited by the lack of their communication skills. In child
sexual abuse cases, this inexpressibility or limited communication is overcome by psychiatrists who
use dolls to understand the precise nature of abuse. The limited knowledge of a police officer of
the limitations of a child’s ability to communicate and his/her stage of mental development might
result in testimony fraught with errors and, thus, detrimental to the case. The law has to provide
for a standard procedure for the testimony and statements of all child victims and witnesses and
to have the services of a trained psychiatrist to help draft complaints or statements to be used as
evidence. This will not only ensure the veracity and the validity of the statements, but will also
help provide the child with a more sensitive environment. Such interrogations of children can take
place in the presence of a police officer, after ensuring that he/she is dressed in plain clothes and
does not reveal his/her identity as a police officer so as not to threaten the child.
While child-sensitive procedures in court have been emphasised by recent developments such
as the recent Supreme Court judgement in a PIL filed by Sakhsi, an NGO,102 the involvement and
use of psychologists has not yet gained importance. Although the Indian Criminal Procedure Code,
1973, provides for in-camera proceedings103 in the case of rape, it did not provide the same for cases
of sexual assault that fall outside the definition of rape. Thus, child sexual abuse that did not involve
penile penetration did not essentially qualify for this protection. The Supreme Court decision has
resulted in an amendment that provides for the application of in-camera proceedings in cases of
sexual assault104 and unnatural sexual offences105 which covers cases of sexual assault of boys as well
as non-penile penetration or other forms of sexual offences against male or female children. While
this is the position with respect to cases of child sexual abuse, all other cases of child testimony are
carried out using standard court procedures. This exposes children to threats and harassment in
other criminal cases where the evidence of the child is crucial to the case involved.
The use of in-camera proceedings while enabling child testimony, is not a complete solution to the
several other factors that influence child testimony, such as the manner in which questions are put
to the child concerned. Under the CrPC,106 evidence shall be taken in the presence of the accused.
In the case of sexual offences, whether or not concerning a child, this requirement can cause fear,
embarrassment and psychological distress to the survivor, affecting the testimony provided. This
position was altered after the decision of the Supreme Court in Sakshi vs Union of India, where
the court issued some positive orders in the context of child testimony in sexual abuse or rape
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207
cases, ordering—the use of a screen to shield the victim/witness from the accused; that questions
put in cross examination should be given in writing to the Presiding Officer who may pose them
to the victim/witness in a manner that is not embarrassing; and that the victim should be allowed
sufficient breaks as and when required. However even if this provision were to be followed, the
examination of a traumatised child most often by the Magistrate or such other presiding Judicial
officer, if insensitively carried out could result in the child turning hostile, providing false evidence
or retracting statements made earlier, which is often the trend in child sexual abuse cases.
In terms of the questions to be posed to the child, Section 287 of the CrPC also provides that
the parties to the proceedings may forward ‘interrogatories’ in writing which, if the magistrate finds
relevant to the issue, shall be used to examine the witness. While this provision has been limited
by the Supreme Court’s requirement for approval of the list of questions by a judicial officer, crossexamination can still be a harrowing and often damaging experience for children. In the case of
younger children, such examination in chief and cross-examination may become impossible due to
the inability of the child to communicate exactly what took place. Moreover, the provisions of the
Indian Evidence Act, which allow hard questioning routines, are also counterproductive, keeping
in mind that judicial officers at the trial level often lack both training and sensitivity.
The regular evidencing routine involves the provision of what is called ‘examination in chief ’,
which is conducted by the public prosecutor and is followed by a cross-examination that is conducted
by the defence counsel. The prosecutor leads examination in chief by posing questions to the witness
to establish the crime, and the defence counsel cross-examines the witness to disprove the case.
The questions posed both in examination in chief and the cross-examination are pre-approved by
the judicial officer presiding over the case to ensure that suggestive, misleading or embarrassing
questions are not posed to the witnesses.
What is problematic about this method is that it allows the child to come directly in contact
with the defence counsel and the daunting confines of courtrooms. The use of psychiatrists,
though practiced by some courts in India on the plea of the prosecutors to safeguard and protect
the child, is not provided for specifically by law. A mandatory provision of examination and crossexamination of a child through a child psychiatrist will not only lead to reliable evidence but will
also help protect the child from having to undergo tedious examination by the court.
Suggestibility and Appropriate Questioning Methods
Both adult and child testimony are susceptible to suggestibility. Thus, the question is not whether
children are suggestible, but whether they are more suggestible than adults.107 Thus, most research
in this area is directed towards a comparison of adult and child testimony in terms of the degree
of suggestibility. Research indicates that children, even very young ones, are able to provide a
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worthwhile account of what happened if they are interviewed appropriately.108 There are several
factors that affect the ability to recollect from memory, most importantly the suggestibility of the
questions,109 which has become a key issue recently due to the increased addressing of child sexual
abuse in other parts of the world and the efforts to detect and convict offenders, bringing with it the
dangers of evidence elicited through suggestive questioning.110 In order to overcome suggestibility
and to protect the children involved, measures were implemented in the US to shield children
from the abuser or the other party in the case through the use of closed circuit television,111 and in
Great Britain through the use of video links and video recording of interviews.112
In-camera proceedings are provided for in rape cases filed under Section 376 of the IPC, which is
limited to rape of female children and does not apply to offences of sexual assault such as fondling,
sexual grooming, and so on. Such sexual offences not amounting to rape, and rape of boys or adult
men, are generally prosecuted under Section 377 of the IPC, which means that the benefit of incamera proceedings is not provided for in such cases, despite the fact that all sexual abuse, whether
it is that of girls or boys, should technically be treated in similar fashion. The recommendations
by the National Commission of Women for amendment of these provisions is pending (despite
the fact children continuing to suffer secondary victimisation and the effects of suggestibility),
and the vicious cycle continues, with suggestible evidence failing to prove cases and an increasing
loss of faith in child testimony.
It is here that international research and development can be tested and adopted to revamp the
existing system so as to adequately deal with the issue of suggestibility. However, in cases where
the child is emotionally unable to stand the stress of providing testimony, courts do call for and
accept the professional opinions of psychiatrists113 in deciding when to schedule the testimony of
the child, without causing further damage to an already damaged emotional status.114 However, it
must be noted that the interviewing method used in the US is carried out by researchers who are
more susceptible to biases themselves that can be reflected in their work (this can be true of any
professional), thus warranting a set of skills designed to avoid the biasing of evidence/testimony,
with several rules recommended to ensure an interviewing process that cannot be questioned
as biased in a court of law. On the other hand, the involvement of mental health professionals
(psychiatrists or psychologists) who are not ‘interested’ or ‘affected’ by the consequences of the
evidence or testimony obtained—as in Karnataka—can be used as an alternative to testimony
led in court or in-camera. In Great Britain, a new hearsay exception was provided for in 1992 to
the use of videotaped evidence to support evidence in chief given by the child in court. And the
Criminal Justice Act of 1991 also provides the judge with the discretion to exclude part or even all
of the evidence provided over the videotape of an interview if the judge considers the interview to
have been unfairly conducted. While videotaping can provide a permanent solution to the issue of
whether or not a child’s testimony was ‘suggested’ by the interviewer, the lack of such techniques, and
infrastructure and facilities, more so in rural India, may not permit the use of such methods.
Preserving Wellness and Personhood
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On the other hand, the limitations of such techniques have also been felt in Britain, where
social workers opine that the sensitive process of interviewing has been hijacked by the evidential
demands of police.115 This suggests, therefore, the need to combine evidential and investigatory
interviews, thus avoiding repeated interviewing first by the police and then by the judiciary.116 In the
Indian context, too, this issue of double investigation, first by the police—which raises the question
of suggestibility at the very first stage of filing an FIR—and then at the point of providing oral
evidence in Court—where a second possibility of suggestibility presents itself—has to be considered,
not only in the perspective of bias, suggestibility and the vulnerability of children’s evidence but
also in terms of the reality behind statements in the FIR being different from those provided in
court. The fact that a large number of criminal cases are dismissed on grounds of contradictory
statements or conflicting evidence provided in the FIR as against that stated in oral evidence, has
to be considered. It must be countered by a unification of the investigative procedure which both
reduces the exposure of the child and resultant risk of secondary victimisation and improves the
quality of evidence obtained.
Appreciation and Perceived Truthfulness of Child Testimony
Research points out that acceptance of a child’s testimony as truthful is a highly subjective matter and
is based on several criteria such as age, in terms of which children can sometimes be perceived as less
credible than adults117 and sometimes as more truthful than adults118 (which could be based on the
perception that children remember less about witnessed events than adults, but are correspondingly
less motivated to invent deliberate falsehoods),119 gender (with male child witnesses being perceived
as more intelligent than female child witnesses)120 and the method used to obtain testimony (for
example, the use of competency tests before the taking of the oath).121
Avoiding Secondary Victimisation
Inappropriate or inadequate responses by police, judicial and other staff who come in contact with
victims of child sexual abuse or trafficking are shown to result in secondary victimisation. While the
causes of such inadequate handling can be attributed to the lack of adequate structural measures to
cope with and handle child victims, there are other subjective factors such as biases in the process
of forming impressions of victims and of making judgements about their statements. Empirical
evidence suggests that all sorts of irrelevant features may inadvertently have a negative impact on
the perceived credibility of victims.122 So may the victim’s skin colour,123 the victims non-verbal
behaviour124 and observer characteristics (which shapes individual differences). Along with the
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‘rape myth acceptance’ or the ‘rape attitude’ which reflects the idea that forced sex is acceptable
under certain conditions,125 certain behaviour was construed as creating legitimate opportunities
to use force or violence, a stand that was legalised under Section 155(4) of the Indian Evidence
Act (which assigned relevance to the previous character of a rape victim in her cross-examination)
and that was only recently repealed in 2004. This can not only result in secondary victimisation
but can also jeopardise the case in terms of the contents that are recorded in the complaint to be
filed on behalf of the child.126
The question of perceptions of credibility have to be understood in the Indian context as far more
complex and diverse because they include caste, gender and class-based discrimination, all of which
create an atmosphere of mistrust for certain victims who belong to disempowered communities
such as Dalits and other minority segments. In terms of cultural bias, child sexual abuse within
marriage, far from being viewed as a crime, is culturally perceived as normal or accepted behaviour.
The evidence provided by child prostitutes coerced or trafficked into the profession has much
diminished their chances of being perceived as credible, not only in the police stations but also in
courts of law. In order to overcome these biases of perceptions, the structural involvement of NGOs
to assist such children, similar to Victim Assistance Workers in the US, apart from intense training
programmes oriented towards overcoming and handling such biases, would minimise such risks.
In terms of child labour, assigned labour inspectors should also be brought within the ambit of
training, given that child labourers—especially bonded child labourers—are at a high risk of abuse
and victimisation.
CONCLUSION
Receiving Children in the Criminal Law System
The present system of complaint registration for all criminal cases involves the filing of an FIR at the
police station. While this was earlier left to police officers, the use of the Child Line Network, which
works closely with the police, has helped to ensure a more sensitive approach to child survivors.
However, the statement first recorded and filed as an FIR is the most important document on file
that can be either supported or discredited by subsequent oral and documentary evidence. The
success of the Child Line Network should form the basis for extending this service to as many
police stations as possible, with increasing presence in the rural areas to deal with more pressing
issues such as bonded child labour.
This first stage of receiving a child, be it at the Child Line Network or at the police station,
has to be well-planned in terms of a well-defined procedure for recording complaints, including
Preserving Wellness and Personhood
211
highly detailed guidelines pertaining to elements such as the place where children are received,
the specification of the gender of the social worker or police officer—with women to receive girls
and men to receive boys—the necessity of the presence of a third party, the manner in which the
complaint is recorded, the acceptance of evidentiary material, the procedure for the examination
of the person of the child, the kind of questions to be posed to the child, the tone of voice to be
used, the ordering of investigation, the necessity of providing police protection or anonymity to the
child, referrals to medical doctors for examination and collection of evidence, referrals to mental
health professionals to help the child cope and deal with trauma, and so on.
These are but some of the elements that are crucial: they have been enumerated to indicate the
need for extensive work to guide such procedures using manuals, and to provide training to social
workers in organisations that support children and to police officers who are assigned to address
issues regarding children. The use of protocols to guide different children—with specific protocols
for the survivors of child sexual abuse as separate from those used for children rescued from abusive
child labour, and so on—is essential because the needs of children who come in conflict with
different laws are unique and specific treatment enables effective addressal.
In the absence of adequate protocols to guide this extremely crucial process, it is but inevitable that
children are handled insensitively, more out of ignorance than intent. For children who have been
victimised or abused, such insensitive handling could result in long-term damaging consequences which
can very well be avoided with some basic protocol and training. Insensitive handling can also obliterate
or damage extremely important testimony or evidence which could be essential to prosecute child
abusers, thus rendering laws ineffective and even impossible to enforce. Such safeguards and protocols
are just as essential (if not more) in the case of child offenders, too, since, as already discussed in
this chapter, children who are perceived to be offenders are often themselves victims.
Court Procedures
The second step of entry into the criminal law system is the exposure of the child to lawyers,
judges and court officials. At this stage as well, the use of predetermined protocols by these actors,
coupled with intensive training and sensitisation, would provide an informed treatment of children.
However, one of the most important components of this stage is that of an active liaison with
mental health professionals dealing with the child concerned, especially in the case of children
arraigned under the Juvenile Justice Act. In the case of delinquents, the association and active
involvement of the mental health professional would help guide reintegration efforts, while also
informing the adjudicating authority sufficiently of the progress of the child, thus acting as a
crucial link between the two.
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Rehabilitation and Reintegration
This component should occupy a key role under each of the enactments covered in this chapter,
although only the Juvenile Justice Act provides for a manner of rehabilitation. As is evident from
the arguments in this chapter, such services have to be provided to children who come under the
other enactments as well in order to prevent the possibility of such children becoming offenders or
coming in contact with the law repeatedly under the other enactments. This crucial to ensure the
achievement of the objectives of these other laws, which aim to penalise and prevent child sexual
abuse, child trafficking and child labour. Here, again, the role of counsellors, therapists and
mental health professionals is crucial, as the ability of a child to be reinserted into his/her family
or community and the ability of the family or community to enable a successful reinsertion would
largely depend on the success of individual and family or community-based treatment offered by
such services. It is in this third component, therefore, in which the mental health sector would
have to play the chief role.
The Future in Research
Most of the approaches in terms of appreciating child testimony, dealing with children in juvenile
justice systems, and so on, which have been detailed in this chapter to emphasise different approaches
and concepts, are largely Western in nature, arising either from American or European jurisprudence.
While we are still grappling with basic concepts that underline our interactions and interrelations
with children, the progress and scientific refinement of child justice and protection systems in the
Western part of the world is progressively resulting in more efficacious systems. What supports this
development and progress is intensive involvement in highly specific, interdisciplinary and scientific
research, and a progressive and continual analysis and reanalysis of existing systems. These are
designed to improve not only the quality of the testimony obtained in order to support increasing
convictions of those who abuse children but also, more importantly, to treat, counsel and reintegrate
children more effectively into their families and communities, thus focusing both on the justice
element and the more human aspect of healing.
It is this research that supports a decreasing number of children who come within the CJS. It is
this research that is most essential to direct the future strategies that India should put into place to
improve the existing framework. While some of the work and material used in the Western contexts
may not be ideally applicable to the Indian scenario, we still have the advantage of studying these
models and learning from their errors, and putting in place a system that is far more efficacious.
This, however, is the function of research—to analyse, test, document, revise, and help create and
put into place some basic elements which can begin the process.
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It is evident from the above discourse that frameworks of intervention provided by the legal
system are often so broad that they capture and hold, perhaps, just the forensic truth. What slips
through the cracks is the personal truth and impact on the selfhood of the child. Thus, even
paradigms of redress look at legal, not psychological, redress. Even from a disorder perspective,
children who are circumstantially/contextually and/or constitutionally prone to major psychiatric
illnesses (such as mood disorders, substance abuse, and so on) are not recognised or treated. This is
because their disorganised behaviour is interpreted by law as part of the subculture of criminality,
which criminalises, in certain instances, both normal developmental deviances and those that are
triggered by contextual paradigms.
It is here that the gap between legal, moralistic understanding and response to delinquency
overrules the mental health perspective. While the adoption of one approach instead of another
will only result in the disjointed handling of children within the criminal framework, a merger
of these different information bases is what will help create ideal intervention systems that go
beyond punishment and penalty to analysing and designing preventive and treatment-oriented
approaches. The submission here is that psychosocial dimensions have to be the basis on which
such interventions are constructed, and the lack of sensitivity to this aspect in the larger paradigm
of intervention compounds the problem for the child.
NOTES & REFERENCES
1. Abandonment of children and the need to place such children under protective care (special homes under the Juvenile
Justice Act, 2000) included.
2. There is the risk of neglected children (children in need of care and protection) such as street children becoming
juvenile delinquents, turning both victims and offenders at the same time; there is also the risk of the sexual abuse
suffered by children trafficked for the purposes of prostitution, where the child is both a victim and an offender in
the strict application of law, which penalises soliciting.
3. Article 39 of the Indian Constitution and its sub-clauses contain the directive principles of state policy that are meant
to guide the enactment of laws. Article 39(f ) provides ‘that children are given opportunities and facilities to develop
in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.’ Article 39(e) provides that ‘the health and strength of
workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength’. Article 24 provides ‘Prohibition of employment of
children in factories and so on—no child below the age of fourteen years shall be employed to work in any factory
or mine or engaged in any other hazardous employment.’
4. Article 45 of the Constitution provides for ‘…free and compulsory education for children—the State shall endeavour
to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory
education for all children until they complete the age of fourteen years.’
5. Such as the Guardianship and Wards Act, 1890.
6. Indian Majority Act, 1875.
214
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
Shekhar P. Seshadri and Kaveri I. Haritas
Child Marriage Restraint Act, 1929.
The issue of child labour is examined in detail later in this chapter.
Section 65, The Indian Penal Code, 1808.
Such as provisions pertaining to abused, neglected or abandoned children in need of care and protection under the
Juvenile Justice Act, 2000 and provisions under the Indian Penal Code penalising sexual abuse that, in the absence
of specific laws pertaining to child sexual abuse, apply to children.
Such as the provisions for juvenile delinquency under the Juvenile Justice Act, 2000.
Child testimony in protective provisions such as child sexual abuse cases and in penalising provisions in terms of
testimony under the Juvenile Justice Act will be examined in this chapter.
Section 377 is also applied to prosecute gay, lesbian and homosexual relationships as ‘unnatural’ sexual offences.
The Exception to Section 375 of the Indian Penal Code provides that: Sexual intercourse by a man with his own
wife, the wife not being under 15 years of age, is not rape. Section 376 prescribes a punishment of up to 2 years
in the case of marriages where the victim is above 12 years. Thus the maximum punishment of 10 years imprisonment is prescribed within marriages only if the woman is below the age of 12 years, if she is above 12 years but below
15 years, the punishment is a maximum of 2 years and if she is above 15, it is not punishable.
An example of the misuse of marriage is the Muslim child marriage in Hyderabad, (State of Andhra Pradesh, India)
where rich Arabs visit the city, marry young girls by paying a hefty bride price (Mehr) to her parents, and abandon
these children after short periods of time with them in hotels and restaurants. See The Tribune. 2004. ‘Arabian
Knightmare’, The Tribune, Chandigarh, India, 22 August 2004. Available online at http://www.tribuneindia.
com/2004/20040822/women.htm#1, accessed on 31 March 2008.
Law Commission of India, One Hundred And Seventy Second Report on Review of Rape Laws, March 2000,
Mr Justice B.P. Jeevan Reddy. D.O. No. 6(3)(36)/2000_LC(LS). Available online at http://www.lawcommissionofindia.
nic.in/rapelaws.htm, accessed on on 31 March 2008.
The recommended Section 376E(2) and (3) penalises sexual invitation to a young person below the age of
16 years to indulge in sexual activity and sexual behaviour, and touching of a young person who is in a position
of dependency.
Some progressive laws in the United States of America include the Idaho law which provides that in the case of
sexual battery of minors, sexual penetration includes but is not limited to genital-genital contact, oral-genital
contact, anal-genital contact, oral-anal contact, manual-anal contact, or manual-genital contact. Other examples
are the Louisiana law which provides that contact between anal or genitals of one person and any instrumentality
or any part of the body of another person is considered penetration during sexual battery. See State definitions of
Penetration for Sex Crimes, 2003, American Prosecutors Research Institute (APRI). Available online at http://www.
ndaa.org/pdf/vaw_sex_acts.pdf, accessed on 31 March 2008.
Ganesh, Anita, Shekhar Seshadri, Arun Kotankar and Lucy Kumar. 1994. ‘Child Sexual Abuse of Girls’. Report of
a Workshop Series, Samvada. Bangalore.
Raman, Surekha. 1995. ‘Violation of Innocence: Child Sexual Abuse and the Law’, The Lawyers Collective,
10 (October–November): 4–7.
Renvoize, Jean. 1993. ‘Abusers (Chapter 6)’, in Renvoize, Jean. Innocence Destroyed, A Study of Child Sexual Abuse.
London : Routledge.
http://www.ascasupport.org/
Wyatt, Gail Elizabeth and Gloria Johnson Powell. 1988. ‘Identifying the Lasting Effects of Child Sexual Abuse,
An Overview’, in G.E. Wyatt and G.J. Powell (eds), Lasting Effects of Child Sexual Abuse, pp. 11–18. Newbury Park:
Sage Publications.
Conte, Jon R. and John R. Schuerman. 1987. ‘The Effects of Sexual Abuse on Children.: A Multidimensional
Perspective’, Journal of Interpersonal Violence, 2(4): 380–91. Reprinted in Wyatt and Powell (eds) 1988. op. cit.
Preserving Wellness and Personhood
215
25. Section 10A(1) of the Immoral Trafficking Prevention Act provides that a woman found guilty of prostitution may
be detained in a ‘corrective institution’ if her ‘character, state of health and mental condition’ and other conditions
are such that it is expedient to subject her to detention and for such instruction and discipline as are conducive to
her correction.
26. ‘Survivors’ (Chapter 5), in ‘A Report on Trafficking in Women and Children in India, 2002–2003’, NHRCUNIFEM-ISS Project, Vol. I, p. 85. Sankar Sen and P.M. Nair, IPS, p. 85. See the website of the National
Human Rights Commission of India at http://nhrc.nic.in/ and for the report see http://nhrc.nic.in/Publications/
ReportOnTrafficking.pdf consulted on 31 March 2008.
27. Ibid., Vol. 1, p. 85.
28. Ibid.
29. ‘Migration and Trafficking’ (Chapter 11), ibid.
30. Prerana vs State of Maharashtra, Criminal Write Petition No. 788 of 2002, Mumbai High Court, cited in ‘ECPAT
International Report on Laws and Legal Procedures Concerning the Commercial Sexual Exploitation of Children
in India,’ Aparna Bhat, November 2004, in collaboration with the Human Rights Law Network.
31. In the National Human Rights Commission’s report on Trafficking in Women and Children (2003), the issue of
consent was researched, with 60.8 per cent of the women questioned between the age groups 7–15, 16–17 and 18–24,
stating that their first sexual experience was forced on them. As 69.87 per cent of the respondents under 18 years, the
report states that consent has no value when the victim is a child, and when taken under duress or by deceit, consent.
However the actual number of children amongst those claiming consent has not been provided herein. However
on the other hand, it is not denied that there are women who voluntarily practice prostitution, though given the
numbers mentioned herein, it is less likely than forced prostitution. See endnote 26.
32. The Child Labour (Prohibition and Regulation) Act, 1986 defines children below 14 years and seeks to prevent
the employment of children in hazardous occupations and processes, thus legalising the employment of children
below the age of 14 in non-hazardous occupations and processes such as in restaurants, shops, and so on. Children
above 14 years are permitted to work in these hazardous occupations and processes on the condition that they are
given periodic rest—yet another regulation that is almost impossible to monitor.
33. However, this prohibition does not apply to family-run businesses and entrepreneurships as provided in the proviso
to Section 3 of the Act.
34. The hazardous occupations listed under Schedule A and the hazardous processes listed under Schedule B are all
physically hazardous in terms of ensuring the physical health of the child. Item 7 of Schedule A, which lists work
in abattoirs/slaughterhouses, can be viewed in terms of the lack of hygiene and the need to protect children from
the possibility of infection from processes traditionally viewed as capable of transmitting disease.
35. The Government Notification which was issued through a decision of the Labour Ministry on the recommendation
of the Technical Advisory Committee on Child Labour, stating that domestic child labour in homes and private
establishments such as restaurants and eateries is hazardous, and should be listed under the list of hazardous occupations under Schedule A of the Act, was made effective from 10 October 2006.
36. After Section 16, a new Section 16A will be inserted—‘Punishment for sexual exploitation’: whoever, after the
commencement of the Act, sexually exploits or trafficks women or child bonded labour, shall be punished with
imprisonment for a term which may extend to three years and also with fine which may extend to Rs 20,000.
The onus of proof that no sexual exploitation or trafficking has taken place would be on the accused. ‘Review of
Laws and Legislative Measures Affecting Women’ by the National Commission for Women (NCW), No. 22. The
Bonded Labour System (Abolition) Act. 1976. Available online at http://ncw.nic.in/page22.htm, accessed on
31 March 2008.
37. Section 3 provides broad safety outlines on the basis of which state government regulations for safety are
recommended, the failure to comply with which could result in imprisonment from three months to a year or fine
between Rs 10,000 and Rs 20,000. However, the directions are not all-encompassing, and it is possible that additional
216
38.
39.
40.
41.
42.
43.
44.
45.
Shekhar P. Seshadri and Kaveri I. Haritas
detailed regulations would be necessary for each specific occupation in question. The regulation of the employment
of children on dangerous machines is included, although what is considered ‘dangerous’ remains undefined.
The employment of child labour in violation of the Act is penalised with imprisonment or fine, imprisonment
specified at between a minimum of three months up to a year and fine specified at a minimum of Rs 10,000 up to
a maximum of Rs 20,000. Repeat offences are penalised with double the imprisonment, a minimum of six months
up to two years with no specification of fine, while the failure to comply with administrative procedures that enable
supervision, such as failure to notify the inspector of the nature of the establishment and other details in case of
employment of children, failure to maintain register or display notices required to be displayed under the Act or
contravention of other provisions of the Act are penalised with a maximum imprisonment of one month and fine
of up to Rs 10,000.
The multiple responsibilities of Labour Inspectors who are expected to carry out functions under other enactments
result in an inappropriate and random application of provisions under the different enactments pertaining to child
labour, apart from the fact that these inspectors were overburdened even before they assumed responsibilities under
the Child Labour (Prohibition & Regulation) Act, 1986, as per the 1979 report of the Committee on Child Labour.
See ‘Legal Context’ (chapter IV), under Child Labour (Prohibition & Regulation) Act, 1986, in Human Rights
Watch.1996. The Small Hands of Slavery: Bonded Child Labour in India, Human Rights Watch Children’s Rights
Project, pp. 36–39.
The case of girls working in cotton fields in Andhra Pradesh is a good example of the exploitation of children’s work.
These children stand up to 14 hours a day for manually cross-pollinating cotton plants and 60 per cent of them
have abandoned school, with about half of them beginning work before 11 years of age and 29 per cent having
never attended school. This situation has provoked a project supported by IKEA and UNICEF aimed at the promotion of child rights in this region. Details of this project are available online at www.unicef.org. For a media report,
see http://www.unicef.org/india/child_protection_1739.htm, accessed on 31 March 2008.
It is interesting to note that while the Act prohibits the employment of children below the age of 14 years in
hazardous occupations, the violation of which results in penalty and punishment, there is no provision that envisages
compensation in cases of violation. Also, for children above the age of 14 years, there are no specific provisions
pertaining to compensation in case of the health consequences of such work. The Act only provides for general health
guidelines such as the maintenance of cleanliness, disposal of waste, and so on, and provides for state governments
to make specific regulations to safeguard the health and safety of children. Rules enacted by the states are also, to a
large extent, highly superficial, with no provisions for compensation or benefits in case of health repercussions on
children. For example, see the Punjab Child Labour (Prohibition & Regulation) Rules, 1997, which provides very
briefly for the use of safety measures such as masks, and so on, to protect the eyes, but fails to provide for damages or
compensation in case of violation of the provisions. This is a highly important issue and has to be explored in terms
of the costs of child labour to the states as against the costs of poverty sustained by a child labour economy, which
increases such health costs.
Foucault, Michel. 1977. Discipline and Punish, The Birth of the Prison, Translated from French by Alan Sheridan.
New York: Pantheon. See Part 3 Discipline, 1, p. 166.
This is provided for under Section 268 of the Indian Penal Code as any act or omission which causes any common
injury, danger or ‘annoyance’ (emphasis mine) to the public or people in general and is punishable under Section 290
with a fine of up to Rs 200 and, in the case of a repeated offence, is punishable under Section 291 with imprisonment of up to six months or fine or both.
Fouling water from a public reservoir, rendering it less fit for use, is an offence under Section 277 of the Indian
Penal Code with imprisonment of up to three months and fine of up to Rs 500 or both.
Sontag, L.W. April 1955. ‘Psychodynamics of Child Delinquency, Further contributions’, in The American Journal
of Orthopsychiatry, 25(2). The author goes on to explain that these five defences are expressed in different ways by
delinquent and non-delinquent individuals.
Preserving Wellness and Personhood
217
46. Hirschi, Travis. 2002. Causes of Delinquency. Berkeley: University of California Press.
47. McCord, J. 1982. ’A Longitudinal View of the Relationship between Paternal Absence and Crime’ in J. Gunn and
D.P. Farrington (eds), Abnormal Offenders, Delinquency and the Criminal Justice System, pp. 113–28. Chichester,
England: Wiley; Snyder, J. and G. Patterson. 1987. ‘Family Interaction and Delinquent Behavior’ in H.C. Quay
(ed.), Handbook of Juvenile Delinquency, pp. 216–43. New York: Wiley; Farrington, D.P. 1995. ‘The Development
of Offending and Antisocial Behavior from Childhood: Key Findings from the Cambridge Study in Delinquent
Development’, Journal of Child Psychology and Psychiatry, 36: 929–64.
48. Graham, J. and Laan, P.H. van der. 2003. ‘Draft Recommendation on New Ways of Dealing with Juvenile
Delinquency and the Role of Juvenile Justice,’ PC-JU (2002) 17. Strasbourg: Council of Europe; Graham, J. and
Laan, P.H. van der. 2003. ‘Draft Explanatory Memorandum on New Ways of Dealing with Juvenile Delinquency
and the Role of Juvenile Justice,’ PC-JU (2002) 18. Strasbourg: Council of Europe.
49. Kumari, Ved. 2004. ‘Profile of Children in India’, pp. 24 and 25, in Kumari, Ved. The Juvenile Justice System in
India: From Welfare to Rights, pp. 24–25. Delhi: Oxford University Press.
50. The World Youth Report. United Nations. 2003. ‘Juvenile Delinquency’ (Chapter 7) in The Global Situation of
Young People, pp. 189–211, Department of Economic and Social Affairs: United Nations Publication. Available
online at http://www.un.org/esa/socdev/unyin/wyr03.htm. For Chapter 7, see http://www.un.org/esa/socdev/unyin/
documents/ch07.pdf, accessed on 31 March 2008.
51. The Juvenile Justice Act of 1986 authorised all police officers to deal with juveniles (neglected or delinquent). The
2001 enactment provides for the establishment of a special Juvenile Police Unit under Section 63.
52. Section 4(3) of the Juvenile Justice Act, 2000 states: ‘No Magistrate shall be appointed as a member of the Board
unless he has special knowledge or training in child psychology or child welfare and no social worker shall be
appointed as a member of the Board unless he has been actively involved in health, education or welfare activities
pertaining to children for at least seven years.’
53. Section 41 of the 2001 Act provides for adoption of children under the procedure specified by the state government
whereby even non-Hindus can adopt children. It also allows single parents to adopt and also allows for the adoption
of children of the same sex and of adoption irrespective of the number of biological offspring of the adoptive
parent/s.
54. Narrain, Arvind. 2002. ‘The Juvenile Justice (Care and Protection of Children) Act, 2000—A Critique.’ Alternative
Law Forum. Available online at http://www.altlawforum.org/PUBLICATIONS/The%20%20JJ%20Act%202002,
accessed on 31 March 2008.
55. Detrick, Sharon. (ed.) 1999. A Commentary on the United Nations Convention on the Rights of the Child. The Hague,
Boston: Martinus Nijhoff Publishers. See ‘Article 40, The Administration of Juvenile Justice’.
56. Tonry, M. and D.P. Farrington. 1995. ‘Strategic Approaches to Crime Prevention’, in M. Tonry and D.P. Farrington
(eds), Building a Safer Society: Strategic Approaches to Crime Prevention, Crime and Justice: A Review of Research,
19: 1–20. Chicago, IL: University of Chicago Press.
57. Farrington, David P. and Brandon C. Welsh. 2002. ‘Developmental Prevention Programmes: Effectiveness and
Benefit-cost Analysis.’ Chapter 5 in James McGuire (ed.), Offender Rehabilitation and Treatment: Effective Programmes
and Policies to Reduce Re-offending. Chichester, UK: John Wiley and Sons.
58. Since the very young delinquent is more likely to be emotionally uncomfortable and his defences less firmly
established, psychotherapy is more likely to be successful than in other delinquents. Ibid.
59. Redondo, S., J. Sanchez-Meca and V. Garrido. 2002. ‘Crime Treatment in Europe: A Review of Outcome Studies’,
in McGuire (ed.) 2002, op. cit.
60. Lorion, Tolan and Wahler. 1987, referred to in Gordon, D.A. 2002. ‘Intervening with Families of Troubled Youth:
Functional Family Therapy and Parenting Wisely (Chapter 7)’, in McGuire (ed.) 2002, op. cit.
61. Youth and the Millennium Development Goals, Challenges and Opportunities for Implementation. April 2005.
Ad Hoc Working Group for the Youth and the MDGs. Available online at http://www.un.org/esa/socdev/unyin/
documents/youthmdgs.pdf, accessed on 31 March 2008.
218
Shekhar P. Seshadri and Kaveri I. Haritas
62. McKay, J.R.; R.T. Murphy, T.R. Rivinus and S.A. Maisto. 1991. ‘Family Dysfunction and Alcohol and Drug
Use in Adolescent Psychiatric Inpatients’, Journal of the American Academy of Child and Adolescent Psychiatry,
30(6): 967–72. Cited in Wulczyn, Fred. 2002. ‘Intervening with Families of Troubled Youth: Functional Family
Therapy and Parenting Wisely’ (Chapter 7), in McGuire (ed.) 2002, op. cit.
63. Gordon, D.A., G. Jurkovic and J. Arbuthnot. 1998. ‘Treatment of the Juvenile Offender’, in R. Wettstein (ed.)
Treatment of Offenders with Mental Disorders, pp. 365–428, New York: Guilford Press.
64. This intervention is a self-administered CD-ROM, which teaches parents and their children important skills such
as communication, support, supervision and discipline, the lack of which has been implicated in the causation of
delinquency and substance abuse. This programme was examined for effectiveness using court referred low-income
parents who were often resistant to treatment, but who nevertheless showed improvement in comparison to a group
that was not treated. Kacir, C.D. and D.A. Gordon. 1999. ‘Parenting Adolescents Wisely: The Effectiveness of an
Interactive Videodisk Parent Training Program in Appalachia’, Child & Family Behavior Therapy, 21(4): 1–22. The
CD-ROM method may have certain limitations: the larger issue of making such programmes specific to Indian
needs (cultural, situational and social) has to be factored in while considering a use of this or other models or
methods recommended or suggested in this article. It must be remembered that these models are referred to in the
spirit of suggesting similar models or patterns and not to suggest a direct use without modification to the Indian
circumstances and situations.
65. Statistical information on re-offending in India is not available, Despite the progressively evolving crime prevention
and reduction strategies used in Europe, on an average 50 per cent of all convicted criminals re-offend. Redondo
et al. 2002, op. cit., Chapter 4, endnote 59.
66. Renvoize 1993, op. cit., endnote 21.
67. Furniss, T. 1991. The Multi-Professional Handbook of Child Sexual Abuse: Integrated Management, Therapy, and Legal
Intervention. London: Routledge.
68. The earlier enactment, that is, The Juvenile Justice Act, 1986 did not allow for this separation, thus criminalising
neglected and abandoned children.
69. Narrain 2002, op. cit., endnote 54. Also see Foucault 1977, op. cit., which delves into the history of prison and
punishment and traditional approaches to punishment and state policy.
70. Also, ‘rehabilitation’ has been shown to increase the risk of States abusing rehabilitation as a form of social control.
An example is the use of boot camps using a military style ‘rehabilitation’in the US and Britain. Since the Illinois
Statute establishing the first US juvenile court in 1899, the US was strongly influenced by a rehabilitative philosophy.
Delinquents were considered to have lacked proper parental guidance, which the juvenile court judge in loco
parentis (in the place of a parent) would attempt to supply through training schools. The original training schools
were often run in military style. The closest approximation to the current US Boot camp programmes were British
Detention Centres—which were developed to deal with adolescents rather than adult offenders. Bourque, Blair
B., Roberta C. Cronin, Frank R. Pearson, Daniel B. Felker, Mei Han and Sarah M. Hill. 1996. ‘Boot Camps for
Juvenile Offenders: An Implementation Evaluation of Three Demonstration Programs’, Report submitted to the
National Institute of Justice, U.S. Department of Justice.
71. Detrick 1999, op. cit., endnote 55.
72. Article 37 (b) of the Convention on the Rights of the Child, provides ‘No child shall be deprived of his or her liberty
unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and
shall be used only as a measure of the last resort and for the shortest appropriate period of time.’
73. Article 81 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990. Article 82
also provides that the administration of juvenile justice systems should provide for careful selection and recruitment
of every grade and type of personnel, since proper management depends on their integrity, human ability and
professional capacity to deal with juveniles. Part V details the recruitment standards, qualifications, training,
coordination, administration and management of juvenile justice systems.
Preserving Wellness and Personhood
219
74. Article 22.1 says that professional education, in-service training, refresher courses and other appropriate modes of
instruction shall be utilised to establish and maintain the necessary professional competence of all personnel dealing
with juvenile cases.
75. For example, Rule 23(1) of the Karnataka Juvenile Justice Rules, which provides for parental visits of once a month
or more in ‘special cases’, Rule 23(2) which provides for supervision and scrutiny of letters written by or to inmates,
refusal to deliver letters and the power to destroy them after recording the reasons. Such circumspect, flagrant and
arbitrary discretionary powers only prove the circumspect manner in which children are treated in institutions,
likening them to hardened criminals. For a more comprehensive debate, see Narrain 2002, op. cit., endnote 54.
76. Bazemore, Gordon and Mara Schiff. 2005. ‘Community and Government Roles Transformation in the Conferencing
Environment: Dimensions of System Change and Community-Building’, Part 3 in G. Bazemore and M. Schiff,
Juvenile Justice Reform and Restorative Justice: Building Theory and Policy from Practice, p. 68. Portland, OR: Willan
Publishing.
77. Graham and Laan 2003, op. cit., endnote 48.
78. The case of Krist Pereira vs The State of Maharashtra, Criminal Writ Petition No. 1107 of 1996, Mumbai High
Court, was initiated on the death of a three-year-old boy in the Bhiwandi Remand Home. The Experts Committee
set up by the Court, which investigated the conditions of 21 juvenile homes, remand homes, children’s homes and
special homes in Maharashtra, reported pathetic conditions of the various homes, stating that most functioned as
no more than shelters for children. The Court issued several directions detailing improvements to these homes and
involving social workers, NGOs and other stakeholders such as the police and the judiciary.
79. Graham and Laan 2003, op. cit., endnote 48. Also see Nicolas, Queloz; Frédérique, Bütikofer Repond; Delphine,
Pittet; Raphaël, Brossard and Benoit Meyer-Bisch (eds). 2005. Délinquance des jeunes et justice des mineurs: Les défis
des migrations et de la pluralité ethnique, translated in English as Youth Crime and Juvenile Justice: The Challenge of
Migration and Ethnic Diversity (translation mine), pp. 97–123. Berne: Staempfli/Bruxelles: Bruylant.
80. The Intensive Family Preservation Program focuses on family strength, child-raising practices, crisis intervention,
enhancing parental skills and stress reduction. It also provides individualised and group counselling to create a
better environment for the juvenile. The system also provides for a Parental Responsibility Training Program
which helps develop parental skills in providing for the child’s learning and development, the importance of role
models and family ties, and drug prevention. See Yee, Adelia. January 1999. ‘Parental Responsibility in Juvenile
Justice’, National Conference of State Legislatures (NCSL) Legisbrief, 7 (3). Available online at http://www.ncsl.
org/programs/press/schoolviolence/LEGIS73.htm accessed on 1 April 2008.
81. The Convention on the Rights of the Child states in Article 37(c): ‘Every child deprived of liberty shall be treated
with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account
the needs of persons of his or her age.’ Article 40(4) of the CRC says: ‘A variety of dispositions, such as care, guidance
and supervision orders; counselling; probation; foster care; education and vocational training programmes and other
alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to
their well-being and proportionate both to their circumstances and the offence.’
82. The John D. and Catherine T. MacArthur Foundation funded the development of ‘Understanding Adolescents:
A Juvenile Court Training Curriculum’—training materials for juvenile justice professionals—as a joint project
of the Youth Law Center, the Juvenile Law Center, and the American Bar Association Juvenile Justice Center.
The curriculum also provides for evaluation guidelines to determine if a child is fit to stand trial in a juvenile or
criminal court, as the severity of sanction has been raised by several US states, longer periods of incarceration are
being prescribed within the juvenile justice system and the minimum age for allowing transfer of a juvenile case to
a criminal court has reduced. Available online at http://www.njdc.info/macarthur.php, accessed on 1 April 2008.
83. Adopted and proclaimed by the General Assembly resolution 45/112 of 14 December 1990. Part VII of the guidelines
pertains exclusively to research, policy development and coordination, stressing the need for a multidisciplinary and
220
84.
85.
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
Shekhar P. Seshadri and Kaveri I. Haritas
interdisciplinary approach, exchange of information, experience and expertise in national and regional conferences and
the encouragement of collaborations undertaking scientific research with respect to effective models for prevention
of youth crime and juvenile delinquency.
Article 30 and the relevant sub-clauses of the United Nations Rules for the Prevention of Juvenile Delinquency (Riyadh
Guidelines), 1990. Part VI also emphasises the need for a systematically planned and implemented system.
This part of the chapter deals with child testimony generally in terms of the child as a victim of crime (not necessarily
sexual abuse alone) and also the child as a witness to crimes against adults or other children.
McGough, L.S. 1994. Child Witnesses: Fragile Voices in the American Legal System. New Haven, CT: Yale University
Press.
Endres, Johann. 1997. ‘The Suggestibility of the Child Witness: The Role of Individual Differences and Their
Assessment’, The Journal of Credibility Assessment and Witness Psychology, 1(2): 44–67. Psychological Institute,
University of Bonn. Published by the Department of Psychology of Boise State University. Available online at
http://truth.boisestate.edu/jcaawp/9701/9701.html, accessed on 1 April 2008.
Flavell, J.H., E. R. Flavell and F. L. Green. 1983. ‘Development of the Appearance-Reality Distinction’, Cognitive
Psychology, 15: 95–120. In terms of mental pictures, research indicates that children think in terms of images
more frequently than adults (Kosslyn, S.M.; J.A. Margolis; A.M. Barrett; E.J. Goldknopf and P.F. Daly. 1990.
‘Age differences in Imagery Abilities’, Child Development, 61: 995–1010), their imagination being more similar to
an obvious action (Kosslyn, Stephen M. 1980. Image and Mind, Cambridge, MA: Harvard University Press), which
might thus induce children to confuse reality and fantasy, while remembering an event. For a brief review, see
Alonso-Quecuty, M. 1996. ‘Detecting Fact from Fallacy in Child and Adult Witness Accounts’, in G. Davies,
S. Lloyd-Bostock, M. McMurran and C. Wilson (eds), Psychology, Law and Criminal Justice: International Developments
in Research and Practice, pp. 74–80. Berlin: de Gruyter.
Hedderman, Carol. 1987. ‘Children’s Evidence: The Need for Corroboration’, Research and Planning Unit Paper 41.
London: Home Office.
Johnson, M.K. and C.L. Raye. 1981. ‘Reality Monitoring’, Psychological Review, 88: 67–85.
Alonso-Quecuty 1996, op. cit., endnote 88. Children were shown to make errors of omission to a greater extent
than adults, while the latter made errors of commission more frequently. The true and false statements were affected
by the age of the witnesses.
Dahmen-Zimmer, Katharina and Sandra Loohs. 1996. ‘Is there Truth in the Eye of the Beholder? Causal Illusions
in Children and Adults’, in G. Davies et al., op. cit., p. 81, see endnote 88.
‘Evidence of a child witness can be relied on for the conviction of murder when testimony is consistent and
corroborated by her own conduct’: Sitaram vs State of MP, (1975) 4 SCC 175: 1975 SCC (Cr) 464. ‘Evidence of
solitary child eyewitness can be relied upon without corroboration’: Ram Bilash Singh vs State of Bihar, 1996 Cr
LJ 2360 (Pat). ‘Truthful version of teenaged children can be believed’: Dalip Singh vs State of Punjab, AIR 1979
SC 1173: 1979 Cr LJ 700 (SC); State of Maharashtra vs Vilash Pandurang Patil, 1999 Cr LJ 1062 (Bom).
‘It would be prudent to seek corroboration of the evidence of young boy’: Fernandes vs Union Territory, (1977)
1 SCC 707: 1977 SCC (Cr.) 154. ‘There is no bar in accepting testimony of child witnesses but the Court should
not act upon the uncorroborated evidence of child’: Dharma Das vs State, 1989 (26) ACC 316 (All). ‘Extreme
sentence cannot seek its main support from the evidence of a child witness. It is not safe to act upon his disposition,
even if true for putting out a life’: Raja Ram Yadav vs State of Bihar, 1996 (2) All India Criminal Law Reporter.
The UK abolished the need for corroborative evidence in accepting the evidence of a child witness through the
Criminal Justice Bill of 1987. In New South Wales, the need for corroboration was abolished for cases of sexual
assault in 1981. Warner, Kate. 1988. ‘Child Witnesses : Evidentiary Reforms’, in Julia Vernon (ed.), Children as
Witnesses, Proceedings of a Conference held on 3–5 May 1988. Available online at www.aic.gov.au/publications/
proceedings/08/warner.pdf, accessed on 2 April 2008.
Goodman, Gail S. 1984. ‘Children’s Testimony in Historical Perspective’, Journal of Social Issues, 40: 9–31.
Preserving Wellness and Personhood
221
97. Geiselman and Padilla (Geiselman, R.E. and J. Padilla. 1988. ‘Cognitive Interviewing with Child Witnesses’,
Journal of Police Science and Administration, 16: 236–42.) showed that children were 21 per cent more accurate with
the use of the cognitive interview method as against standard police interview methods. The cognitive interview
therapy was first used with adults and tested by Geiselman, Fisher, MacKinnon and Holland (Geiselman, R.E.;
R.P. Fisher; D.P. MacKinnon and H.L. Holland. 1985. ‘Eyewitness Memory Enhancement in the Police Interview:
Cognitive Retrieval Mnemonics Versus Hypnosis’, Journal of Applied Psychology, 70(2): 401–12), where results
showed 35 per cent more accuracy.
98. The cognitive interview was first developed by R.P. Fisher and R.E. Gieselman in the mid-1980s and later
enhanced by adding principles of communication taken from social psychology. Fisher, R.P. and R.E. Geiselman.
1992. Memory-Enhancing Techniques for Investigative Interviewing: The Cognitive Interview. Springfield: Charles
C. Thomas Publications Limited.
99. McCauley, Michelle R. and Ronald P. Fisher. 1996. ‘Enhancing Children’s Eyewitness Testimony with the Cognitive
Interview’, in G. Davies et al., op. cit., see endnote 88.
100. The explicit formulation that statements are a conjoint product of the interviewer and the interviewee goes back
to William Stern, who pioneered psychological eyewitness research in Germany ‘The statement as a mental
achievement and product of interrogation’ was the title of one of his influential papers, (Stern, William. 1904. ‘Die
Aussage als geistige Leistung und als Verhörsprodukt [The Testimony is an Intellectual and an Audition Product]’,
in Beiträge zur Psychologie der Aussage, Vol. 3, Leipzig: J.A. Barth).
In a later work, Stern (Stern, W. 1926. Jugendliche Zeugen in Sittlichkeitsprozessen: ihre Behandlung und psychologische
Begutachtung [Juvenile witnesses in sex crime proceedings: their treatment and psychological assessment]. Leipzig:
Quelle & Meyer.) reviewed several forensic cases and further elaborated his idea that suggestibility depends
both on the characteristics of the witness and of the interview situation. He thought that younger children and
girls were more suggestible and that suggestibility was, moreover, related both to ‘character’ and to the type of
questions asked.
101. Section 156 provides police officers’ power to investigate cognizable case: ‘(i) Any officer in-charge of a police
station may, without the order of a Magistrate, investigate any cognizable case, which a Court having jurisdiction
over the local area within the limits of such station would have power to inquire into or try under the provisions
of Chapter XIII. (ii) No proceeding of a police officer in any such case shall at any stage be called in question on
the ground that the case was one which such officer was not empowered under this section to investigate. (iii) Any
Magistrate empowered under section 190 may order such an investigation as above-mentioned.’
102. Sakshi vs Union of India and Ors, Writ Petition (Crl.) No. 33 of 1997 with SLP (Crl.) Nos. 1672-1673/2000,
decided on 26.05.2004, reported in AIR (2004) SC 3566; 2004 CriLJ. 2881; and (2004) 5 SCC 518. This writ
petition was filed by Sakshi for a declaration that ‘sexual intercourse’ as defined under Section 375 IPC should
include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration,
finger/vaginal and finger/anal penetration and object/vaginal penetration and for protection of a victim of sexual
abuse at time of recording his/her statement in Court, so as to ensure that the victim or the witnesses are able to
depose in a free atmosphere without any embarrassment. While the court refused to alter the limited definition of
rape under Section 375, some positive orders for the protection of the child were issued. The Law Commission’s
172nd Report was supported and strengthened by the inputs of Sakshi, Interventions for Support, Healing and
Awareness (IFSHA), the All India Democratic Women’s Association (AIDWA) and the National Commission
for Women (NCW). See the—Law Commission of India, One Hundred and Seventy Second Report on Review of
Rape Laws, March 2000, by Mr Justice B.P. Jeevan Reddy, D.O.No. 6(3)(36)/2000_LC(LS). Available online at
http://www.lawcommissionofindia.nic.in/rapelaws.htm, accessed on 31 March 2008.
103. Section 327(2) provides ‘for cases of rape under Section 376, Section 376-A, Section 376-B, Section 376-C or
Section 376-D of the Indian Penal Code (45 of 1860)’ to be conducted in-camera. However, 327(3) allows for
the court to permit publication of such trial, contradicting the protection guaranteed under the second clause.
222
Shekhar P. Seshadri and Kaveri I. Haritas
104. Section 354 of the IPC says that whoever assaults or uses criminal force on any woman, intending to outrage or
knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
105. Section 327(2) of the Criminal Procedure Code, 1973 provides ‘for cases of rape under Section 376, Section 376-A,
Section 376-B, Section 376-C or Section 376-D of the Indian Penal Code (45 of 1860) to be conducted in
camera.’ However 327 (3) allows for the court to permit publication of such trial, contradicting the protection
guaranteed under the second clause.
106. Section 273 of the CrPC states that except as otherwise expressly provided, all evidence taken in the course of
the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is
dispensed with, in presence of his pleader.
107. Loftus, E.F. and G.M. Davies. 1984. ‘Distortions in the Memory of Children’, Journal of Social Issues, 40(2): 51–67,
referred to, in McGough, S. Lucy and Amye Warren. 1996. ‘Research on Children’s Suggestibility: Implications for
the Investigative Interview’, 23 Criminal Justice and Behavior, p. 269 and Bette L. Bottoms and Gail S. Goodman
(eds), International Perspectives on Child Abuse and Children’s Testimony: Psychological Research and Law. Newbury
Park, CA: Sage Publications.
108. See Saywitz, K.; G. Goodman and J. Myers. 1990. ‘Can Children Provide Accurate Eyewitness Accounts?’ Violence
Update, No. 2, September 1990, p. 10–11; Vizard, E. 1991. Interviewing Children Suspected of Being Sexually
Abused: A Review of Theory and Practice in C.R. Hollin and K. Howells (eds), Clinical Approaches to Sex Offenders
and Their Victims, Wiley Series in Clinical Approaches to Criminal Behaviour. West Sussex, England: John Wiley
and Sons Ltd. and Spencer, J.R. and R. Flin. 1993. The Evidence of Children: The Law and the Psychology (Second
edition). London: Blackstone Press Ltd.
109. See endnote 87. One factor known to interfere with performance on a wide range of memory tasks, from physical
judgements to person identification, is suggestive questioning (Loftus, E.F. 1975. ‘Leading questions and the
eyewitness report,’ Cognitive Psychology, 7: 560–72.). The suggestiveness of a question or of an interview procedure
can be defined in terms of their potential to influence a person’s reporting of events or objects. Suggestibility has
also been conceptualised as an individual trait variable, as a person’s susceptibility or vulnerability to suggestive
influences (Binet. 1900. La Suggestibilité (Suggestibility). Paris: Schleicher; Gudjonsson, G.H. 1992. The Psychology
of Interrogations, Confessions, and Testimony. Chichester : John Wiley & Sons).
110. McGough et al. 1996, op. cit., see endnote 107.
111. This was following a series of failed trials of child sexual abuse prosecutions, beginning with the McMartin PreSchool Case in California, People vs Buckley, 1984. The closed circuit television method was used in Coy vs Iowa,
1988; Maryyland vs Craig, 1990.
112. Bull, Ray and Graham Davies. 1996. ‘The Effect of Child Witness Research on Legislation’ in Bottoms and
Goodman (eds) 1996, op. cit., see endnote 107.
113. However it must be noted that the interviewing method used in the United States is carried out by researchers who
are more susceptible to biases themselves that can reflect in their work (while this can be true of any professional),
thus warranting a set of skills to avoid any bias of evidence/testimony, with several rules recommended to ensure
an interviewing process that cannot be questioned as biased, in a court of law; on the other hand the involvement
of mental health professionals, (psychiatrists or psychologists) who are not ‘interested’ or ‘affected’ by the consequences of the evidence or testimony obtained, as in Karnataka, can be used as an alternative to testimony led in
court/in camera.
114. Section 60 of the Indian Evidence Act provides that oral evidence has to be given directly. This method has
encountered similar hearsay objections in the US as well, where the Supreme Court has, in some cases, reversed
decisions based on such expert evidence: for example, Idaho vs Wright, 1990; State vs Michaels, 136 N.J. 299, 642
A. 2d, p. 1372, (N.J. 1994). In State vs Michaels, the interviewing techniques used by researchers were strongly
criticised by the court.
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223
115. Jones, A. and K. Bilton. 1994. The Future Shape of Children’s Services. London: National Children’s Bureau.
116. Wattam, Corrine. 1992. Making a Case in Child Protection. Harlow: Longman.
117. Goodman, Gail S.; Jonathan M. Golding and Marshall M. Haith. 1984. ‘Jurors Reactions to Child Witnesses’,
Journal of Social Issues, 40(2): 139–56.
118. Ross, Miller and Moran. 1987. Study with undergraduate mock jurors. See Ross, David F.; Beth S. Miller and
Patricia S. Moran. 1987. ‘The Child in the Eyes of the Jury: Assessing Mock Jurors Perceptions of the Child
Witness’ in S.J. Ceci, M.P. Toglia and D.F. Ross (eds), Children’s Eyewitness Memory. New York: Springer-Verlag.
119. Peterson, Candida C. 1996. ‘The Perceived Truthfulness of Children’s and Adults’ Testimony: The Oath versus
Competency Test’, in Davies et al., op. cit., see endnote 88.
120. Ibid., where the study revealed that the perceived intelligence of male children was perceived as superior to that
of female child witnesses.
121. Competency tests essentially consist of an interrogation by the judge to decide whether the child is able to understand
what he/she has seen or heard, is able to give an account of it and is able to appreciate the duty to speak the truth.
This process, which is carried out to ascertain the credibility of child witness testimony in the US (following the
R vs Brasier case, 168 ER 202), has been highly criticised due to the added stress that it imposes on young children,
and the possibility of inappropriate application by judges who lack formal training on interviewing children.
122. Winkel, Frans Willem and Leendert Koppelaar. 1991. ‘Rape Victims’ Style of Self-Presentation and Secondary
Victimization by the Environment: An Experiment’, Journal of Interpersonal Violence, 6(1): 29–41; Winkel, F.W. and
A. Vrij. 1990. ‘Fear of Crime and Mass Media Crime Reports: Testing Similarity Hypotheses’, International Review
of Victimology, 1(3): 251–66; and Winkel, Frans Willem and Leendert Koppelaar. 1992. ‘Perceived Credibility of
the Communicator: Studies of Perceptual Bias in Police Officers Conducting Rape Interviews’ in Friedrich Losel,
Doris Bender and Thomas Bliesener (eds), Psychology and Law: International Perspectives, pp. 219–34. Berlin,
New York: Walter de Gruyter.
123. In the Indian context, this can be extended to cultural differences that can skew the manner in which a victim’s
testimony is received.
124. Winkel, Frans Willem. 1991. ‘Interaction between the Police and Minority Group Members: Victimization through
the Incorrect Interpretation of Nonverbal Behaviour’, International Review of Victimology, 2(4): 15–28; Vrij, Aldert
and Frans Willem Winkel 1992. ‘Crosscultural Police-Citizen Interactions: The influence of Race, Beliefs, and
Nonverbal Communication on Impression Formation’, Journal of Applied Social Psychology, 22(19): 1546–59; and
Vrij, Aldert and Frans Willem Winkel. 1992. ‘Police-Citizen Interaction and Nonverbal Communication: The
Impact of Culturally Determined Smiling and Gestures’ in Losel et al. (eds). 1992, op. cit., see endnote 122. They
provide empirical evidence that a victim’s black non-verbal style of communicating undermines the credibility of
her statements, in the sense that black styles generally leave less favourable impressions on white observers.
125. Barnett, N.J. and H.S. Field. 1977. ‘Sex Differences in University Students’ Attitudes towards Rape’, Journal of
College Student Personnel, 18: 93–96; Burt, Martha R. 1980. ‘Cultural Myths and Support for Rape’, Journal of
Personality and Social Psychology, 38: 217–30; Burt, Martha R. and Rochelle S. Albin. 1981. ‘Rape Myths, Rape
Definitions, and Probability of Conviction’, Journal of Applied Social Psychology, 11: 212–30 and Schwartz, J.;
H. Williams and F. Pepitone-Rockwell. 1981. ‘Construction of a Rape Awareness Scale’, Victimology, 6: 110–19.
126. The research relied on in this paragraph pertains to rape victims without specific application to child victims of
abuse, but since the reactions are those of service providers and the perceptions are of those dealing with rape
victims, this can be said to apply to children as well. Winkel, Frans W. and Simone de Winter. 1996. ‘The Perceived
Credibility of Rape Victims During a Police Interview: An Experiment among Victim Assistance Workers’, in
Davies et al. (eds) 1996, op. cit., see endnote 88.
224
Shekhar P. Seshadri and Kaveri I. Haritas
SECTION III
Legislating the ‘Other’ and the
‘Extraordinaire’
226
Arvind Narrain
9
Penal Strategies and Political Resistance
in Colonial and Independent India
Ujjwal Kumar Singh
The first Indian Law Commission produced a draft of the Indian Penal Code (IPC) in 1837, which
was enacted into law in 1860 after the assumption of direct rule by the Crown in 1858.1 For reasons
unexplained, Section 113 of the draft penal code dealing with sedition was not included in the
IPC, 1860 (hereafter IPC) and was added 10 years later as Section 124A by a special Act (XXVII
of 1870)2 under the chapter ‘Offences against the State’. The members of the Law Commission
held that ‘state crimes’, or crimes of a political nature, were especially ‘heinous and formidable’
and required ‘strong and sharp’ measures. The statement, extracted from the draft below, offers a
telling insight into the ways in which the first Law Commission distinguished between ordinary
crimes and state crimes, and emphasised the need for extraordinary measures commensurate
with crimes of an exceptional nature. To quote the draft:
…for state crimes, especially the most heinous and formidable state crimes, have this peculiarity,
that if they are successfully committed, the criminal is almost always secure from punishment.
The murderer is in greater danger after his victim is dispatched than before. The thief is in
greater danger after the purse is taken than before. But the rebel is out of danger as soon as
he has subverted the Government. As the penal law is impotent against a successful rebel, it
is consequently necessary that it should be made strong and sharp against the first beginnings
of rebellion, against treasonable designs which have been carried no further than plots and
preparations.3
It is significant how the Law Commission exhibits an overriding concern with the protection
of the State against the ‘successful rebel’. The anachronism between the successful rebel and the
penal law, it is argued, renders the latter impotent. Unlike the thief and the murderer, who are in
228
Ujjwal Kumar Singh
greater danger after having committed an offence since they come under the purview of the penal
law, the State criminal, once the crime has been committed, is secure from punishment since he
has already ‘subverted’ the government and its law. Guarding against the emasculation of the
State, the draft suggests, evidently requires ‘protection against the successful rebel’.
More than 160 years later, in 2003, while upholding the constitutional validity of an
extraordinary law, the Prevention of Terrorism Act, 2001 (POTA), the Supreme Court of India
endorsed extraordinary procedures on the ‘rationale of supreme necessity not covered by regular
law’. It also upheld the executive’s delineation of ‘necessity’, for example, public order, national
security, waging war against the State, conspiracy against the State, terrorism, and so on (PUCL
vs Union of India, Writ petition 129 of 2002, decided in December 2003). In the process, the
Supreme Court expanded the legislative authority of the Executive, giving it the overreach by
means of which it transcended the areas of potential contest over what the Executive perceives
as necessary power and what the law actually makes available. The Supreme Court’s decisions upholding the constitutional validity of POTA and the Terrorist and Disruptive Activities
(Prevention) Act (TADA) 1985 and 1987 earlier may be seen as attributing legality to the various
procedural exceptions that these laws prescribed. The draft penal code in 1837 to the Supreme
Court judgement in 2003 may be seen as an uninterrupted concern with preserving the existing
order, holding out a range of arguments that can broadly be seen as deriving from the ‘reason of
state’, which advocates the exercise of an unrestricted panoply of measures by the State when it is
faced with challenges of existence.4
Thus, political crimes continue to be treated as exceptional and a threat to the State’s existence,
manifesting thereby a politics of negation. Despite the fact that the IPC carries a provision
dealing with sedition (124A) which specifies the ways in which the ordinary penal law could
address ‘political crime’ as an ‘exceptional’ case, there has been an enduring tendency to bypass
ordinary law. Several extraordinary measures, including preventive detention and substantive
laws, have existed to either detain political offenders without trial or to bring them within the
ambit of ‘conspiracy’ and ‘treason’ in order to punish them in exemplarily deterrent ways. The manner in which preventive detention and extraordinary laws have unfolded over the years manifests
two distinct patterns: the emergence of parallel systems of criminal justice—the ordinary criminal
legal system or the Criminal Justice System (CJS) and the Preventive Detention System (PDS).
The most striking distinctions that Upendra Baxi marks out between the two systems—the
PDS and CJS—pertain to the object, models of justice, and patterns of power-sharing that they
espouse.5 The CJS is based on the assumption of primacy of social defence as the object of law, the
maximisation and optimisation of due process as its strategy, and the pre-eminence of the courts
that are legalistic and pro-accused in their disposition. The PDS, on the other hand, is primarily
geared towards repressing (for the most part, political and ideological) opposition, thrives on
Penal Strategies and Political Resistance in Colonial and Independent India
229
minimal due process, and gives pre-eminence to executive decision-making and ‘satisfaction’ in
the initiation and affirmation of extraordinary proceedings.
A distinctive pattern that has emerged, however, in the operation of extraordinary laws, lending
to its normalisation, is the interlocking between the ordinary and extraordinary laws. Interlocking takes diverse forms. Extraordinary laws, namely, anti-terror laws, may amend specific
statutes of the ordinary law, or there may be a mutual sharing of provisions between the ordinary
and extraordinary laws.6 As a result of this symbiotic relationship between ordinary criminal
law and emergency legislation, there is a general ‘tightening up’ throughout the statutory law.7 This
standardisation of law becomes symptomatic of ‘an insidious circular process in which draconian
laws soften us up to similar laws which become the desired standard for further measures’.8 The
repeal of POTA, accompanied by the ‘strengthening’ of the Unlawful Activities Prevention Act
(UAPA), 1967, which was amended in 2004, is a manifestation of this circular process whereby
the extraordinary and the ordinary become enmeshed.
This chapter will explore these patterns by examining the preventive detention and extraordinary laws that have come into existence primarily in response to political resistance in colonial
and independent India. The purpose is to show how, through the matrix of laws, courts and
punishment, the penal system delineates the exceptional and the extraordinary, and devises legal
and penal practices commensurate with them. In the process of this examination, it will attempt
to formulate and examine the problematic that:
(a) penal strategies devised to deal with political resistance are embedded in notions of necessity,
which implies the suspension of ordinary laws/procedures;
(b) the identification of extraordinariness is necessarily determined by reasons of state and
given form through legal, juridical and penal measures;
(c) the extraordinary does not lie at the borders between politics and law, but the two inextricably inform each other in complex, interlocking relationships;
(d ) the process of interlocking involves a reaffirmation of state sovereignty; and
(e) the process of reaffirmation of the domain of state sovereignty through legal, juridical
and penal measures involves a corresponding attempt to de-legitimise political resistance,
struggles and assertions of popular will through de-politicisation and criminalisation and
the use of binary oppositions.
On the other hand, the focus on identifying patterns in the unfolding of preventive detention
and extraordinary laws, specifically as it emerges in the context of political resistance, must not
detract us from a discussion of two important trends which may not be captured by these patterns
owing to their ‘ordinariness’: (a) As the experience with the implementation of the Maintenance
of Internal Security Act (MISA), 1975 showed, it was used against ‘petty criminals’, indicating
230
Ujjwal Kumar Singh
a trend towards abdication of ordinary (and cumbersome) legal processes in favour of measures
which allowed confinement with relative ease; (b) The experience of the application of ‘ordinary’
legal measures on peasants and workers shows how the measures become a means by which the
latter can be perpetually ensnared in a sticky web of legality. Before we examine the patterns identified earlier, it is important to look at these two processes.
The use of preventive detention laws as an easy substitute for cases in which the ordinary legal
procedures were applicable was witnessed in the case of both the Preventive Detention Act (PDA)
and MISA. While at the procedural level, it manifested in the taking of recourse to shortcuts, at a
more substantive level, it obfuscated debates on issues of democracy and the political, as such laws
are able to elicit public approval by appearing as strong and appropriate measures for dealing with
economic offences. It is not surprising, then, that the Emergency continues to draw favourable
responses from people who remember it as a period in which ‘corruption’ was dealt with strongly
under MISA. The Shah Commission Report gives state-wise figures of MISA detenus, identifying,
in each case, the break-up of detentions under the heads (i) ‘political parties’; (ii) ‘banned organisations’; and (iii) ‘anti-socials, criminals and others’. The following table9 (Table 9.1) shows that
the number of detenus in the last category was disproportionately high in all the states:
The number of detenus in the third category was uniformly high in all the states, particularly
Bihar, Gujarat, Maharashtra and Madhya Pradesh, which had the largest number of detenus in
the category ‘anti-socials, economic offenders, and others’. The Shah Commission noted that the
use of MISA in this category could have been avoided, and:
Despite the instructions of Government of India not to use the powers under MISA against such
criminals, whose activities did not impinge on public order, quite a number of such persons
were detained under MISA. The scrutiny of detention cases has revealed that quite often the
distinction between public order and law and order was completely forgotten and MISA was
used against ordinary and petty criminals, whose acts could not be regarded as affecting public
order in any manner. As in some other States also the police in this State [Gujarat] chose to
use MISA as a short cut to put persons behind bars and avoid recourse to normal laws, which
required detailed investigation and prosecution.10
As far as the persons who constituted this category are concerned, the Report notes in the case
of Gujarat that these were:
…prohibition offenders, bootleggers and persons involved in ordinary offences like theft,
assault, quarrelling etc. In several cases even though the police enclosed a list of offences in
which the detenus were said to be involved in the past very few convictions were shown…. In
Ahmedabad, a numbers of persons involved in ordinary criminal offences 5 to 15 years before
Penal Strategies and Political Resistance in Colonial and Independent India
231
Table 9.1: Number of Detenus
State
Andhra Pradesh
Assam
Bihar
Gujarat
Haryana
Himachal Pradesh
Karnataka
Kerala
Madhya Pradesh
Maharashtra
Manipur
Meghalaya
Nagaland
Orissa
Punjab
Rajasthan
Sikkim
Tamil Nadu
Tripura
Uttar Pradesh
West Bengal
Andaman and Nicobar Islands
Arunachal Pradesh
Chandigarh
Dadra and Nagar Haveli
Delhi
Goa
Lakshadweep
Mizoram
Pondicherry
Total MISA
Detenus
Political
Parties
Banned
Organisations
Anti-socials,
Criminals, Others
1,135
533
2,360
1,762
200
34
487
790
5,620
5,473
231
39
92
408
440
542
4
1,027
77
6,956
4,992
41
Nil
27
Nil
1,012
113
Nil
70
54
210
203
530
404
172
17
156
221
1,807
780
14
2
9
141
33
213
512
143
269
135
24
8
165
476
1,593
1,717
2
14
Nil
112
16
154
413
187
1,561
1,223
4
9
156
93
2,220
2,976
127
23
86
155
57
175
570
18
785
41
Nil
139
9
637
186
28
318
50
5,534
84
13
15
6
6
180
9
146
9
538
95
12
37
Nil
2
58
12
the Emergency, were detained under MISA and the only recent criminal activity mentioned
in the grounds related to one or two incidents of assault on some persons in the bazaar a few
days before the date of detention. It is significant to note that no report of such incidents or
assault was lodged with the police.11
In the case of Nagaland, however, the third category comprising of 86 of the total 92 MISA
detenus consisted of only 25 alleged economic offenders. The rest, the Commission noted, were
mainly those detained:
…for reasons of the security of state, viz., supporters of the underground Naga movement,
opponents of Shillong Agreement of November 1975 between the Government of India and
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Ujjwal Kumar Singh
Naga hostiles, cases of attempted hijacking/ex-filtration and persons caught returning from or
trying to go to China.12
Evidently, this was an attempt at criminalising political dissent by locating it within the category
of anti-socials and criminals.
Before MISA, the Preventive Detention Act (1950) was used to detain various persons for a
range of reasons, including membership in a ‘subversive group exhorting violence’ to ordinary
crimes like theft and even ‘eve-teasing’. A study of preventive detention cases shows that of the
224 cases brought before the court, 151 related to problems of crimes of ordinary law and order,
of which 55 related to theft of railway property such as copper wire, signalling equipment, etc.,
five cases of ‘eve teasing’, three of rioting, eight of arson, five of theft, seven of aiding dacoits and
possession of stolen property.13
On the other hand, the manner in which ordinary legal measures are actually used to ‘hold individuals to perpetual illegality’, ‘all within the framework of the rule of law’, is also significant:
Those ordered by courts to be released on one set of charges are rearrested on another set of
charges. Those set free from preventive detention are brought back to prison—often rearrested
outside the court premises or at the door-step of the prisons on specific charges. A favourite
device of some of the State Governments is the implication of individuals in a number of
interlocking cases. There is horizontal interlocking as well as vertical interlocking. In Andhra
Pradesh, the method has been perfected into a fool-proof one—all within the framework of
the rule of law. In the conspiracy case there (beginning with the Nagi Reddy conspiracy case,
as it is known) a number of cases (of alleged dacoity, murder etc.) were aggregated into a larger
case of conspiracy in furtherance of which the alleged offences were said to have been committed. Even where individuals were acquitted in specific cases they were later charged with
conspiracy in furtherance of which the alleged offences were committed. The persons charged
with conspiracy are in effect the sum total of those charged with lesser offences earlier. The
offences in the conspiracy trial is in effect the aggregate of the evidence in the less serious cases
which ended in acquittal of the accused.14
A major government strategy of controlling the Naxalite movement relied on keeping them
interminably in prisons. ‘Lawful’ procedures were employed to entwine person in a maze of arrests
and re-arrests, until he crossed the line beyond which his ‘freedom became a threat to the Security
of State, Public Order and the rest of the ritual chant that has justified all repressive legislation
in India’.15 During 1978–79, among the various measures the Andhra Pradesh police used to
repress poor peasants who were resisting atrocities by landlords was—apart from beating, arrests
and torture in custody—to implicate them in false cases.16 While Balagopal quizzed his readers
Penal Strategies and Political Resistance in Colonial and Independent India
233
in the 1980s, ‘how long can a person be kept in jail without being convicted of any crime?’17, in
1973 Ashok Rudra exposed the mask of legality by tracing a sequential description of the ‘legal’
harassment of political opponents:
…the police file one or more cases; this makes the family members arrange for legal defence;
the police prolong the detention of the prisoner by asking for more time to prepare the case;
usually not much of a case is made and the bail petition is granted. But no sooner is bail given
than the police file a few more cases and re-arrest the released person. By this the police achieve
three results, in addition to that of continued detention, namely (a) the pretence of legality is
kept up; (b) the police get the chance of having the victim in thana once again so that further
torture could be carried out; (c) by dragging on the court proceedings, economic pressure is
exerted on the families of the accused…. This could mean in many cases economic ruination
of the family.18
PROTECTION AGAINST ‘THE SUCCESSFUL REBEL’: DETENTION IN
COLONIAL AND INDEPENDENT INDIA
The history of preventive detention in colonial India can be traced back to the East India
Company Act, 1793, which empowered the Governor-General to secure and detain any person or
persons suspected of carrying on ‘illicit correspondence or activities prejudicial to the interests of
British Settlements and possessions in India’, and effectively blocked recourse to habeas corpus.19
Among the most prominent measures in the armoury of the colonial government for detention
without trial were the various regulations relating to the confinement of state prisoners. Originating
in the first quarter of the 19th century, the Bengal Regulation III of 1818, the Madras State Prisoners
Regulation II of 1819 and the Bombay State Prisoners Regulation XXV of 1827 were designed to
meet the needs of the expanding Company rule. These regulations were enacted against the
background of British expansion during the early 19th century, particularly the Anglo-Nepalese
war of 1814 and the Anglo-Maratha War of 1817. Later, The State Prisoners Act, 1850, was passed
specifying the places where prisoners could be detained. Accordingly, fortresses, jails and other
places within the area circumscribed by the jurisdiction of the Supreme Court of Calcutta could
be used as places of confinement.
Regulation III of 181820 was gradually extended to other parts of British India21 and was widely
used to suppress the revolutionary terrorist activities in Bengal in the first two decades of the
20th century. The Regulation allowed, for reasons of ‘preservation of tranquillity in the territories
of native princes entitled to its protection’, and ‘the security of British dominions from foreign
hostility and from internal commotion’, the placing of individuals under ‘personal restraint’ against
234
Ujjwal Kumar Singh
whom there might not be sufficient ground to institute any judicial proceedings (Regulation,
Section 1). Unlike the East India Company Act of 1793, the regulation did not require that the
detenu be provided with the grounds of detention. Like the former, however, it did not provide
any specific period of detention. The redeeming features of the regulation were:
(a) the detenu could make representations to the Governor-General;
(b) twice a year, an executive review of the conduct of detenu was undertaken with a view to
review the detention orders;
(c) the officer in charge was responsible for the health of the detenu and also to ensure he got
proper treatment and
(d ) in ‘appropriate’ cases, a maintenance allowance was paid to the family.
The State Prisoner Regulations, however, were beyond the purview of the courts22 and the
detenu was not entitled to the habeas corpus relief.23
The officials emphasised the extraordinariness and peculiarity of the conditions under which
the Regulation was used.24 It was used against the Moplahs in 1897 to curb ‘fanaticism accompanied
with murder’ and to ensure ‘public peace’. The choice for the government, it was claimed, was between ‘impotence’ and ‘abandoning the task of government’ or a ‘necessary recourse to Regulation’,
and presented as ‘inevitable’ and ‘just’.25 The use of the Regulation as a strong and effective measure
was justified, moreover, through an essentialist construction of Indian society, which warranted
a government with ‘sterner powers’. H.A. Stuart, for example, quotes Mill in order to convey his
argument:
A people must be considered unfit for more than a limited and qualified freedom, who will not
co-operate actively with the law and the public authorities, in the repression of the evil-doers.
A people who are more disposed to shelter a criminal than to apprehend him; who, like the
Hindus, will perjure themselves to screen the man who has robbed them, rather than take trouble
or expose themselves to vindictiveness by giving evidence against him;…require that the public
authorities should be armed with much sterner powers of repression than elsewhere,…a people so
disposed cannot be governed with as little power exercised over them, as a people whose sympathies
are on the side of the law, and who are willing to give assistance in its enforcement.26
This enabled Stuart to assert that the deportation of Lajpat Rai, Ajit Singh and, later, of the
revolutionary terrorists in Bengal had to be based on ‘evidence of general repute…a kind of
evidence which in India is more satisfactory than the direct evidence’. In much of the official justification for recourse to Regulation, the inability of the colonial government to elicit popular support
was projected as an inherent inadequacy in the subject population.
Penal Strategies and Political Resistance in Colonial and Independent India
235
In the context of the First World War, fears that war conditions might provoke the ‘enemies
within’ to plot armed insurrection in concert with those outside led the government to promulgate
the Ingress into India Ordinance, 1914 and The Defence of India (Criminal Law Amendment)
Act, IV of 1915. The Ingress Ordinance authorised the government to seclude ‘foreigners’ from
the local population, and to restrict Indians coming from foreign countries to certain areas. The
Ordinance was directed towards restraining the influx of Indian revolutionaries from abroad,
particularly those supporting the Ghadr movement which began in San Francisco in 1913 and
acquired a mass base among large numbers of Sikhs in British Columbia and the Pacific coast
states of the USA.27 Under this measure, thousands of Sikhs returning to Punjab from abroad
were brought under surveillance.
Michael O’Dwyer notes in his account that during the early part of the war, of the 175 persons
tried before the special tribunals on general conspiracy charges, 20 were hanged, 58 were transported for life and 58 were transported or imprisoned for shorter periods.28 The Defence of India
Act, 1915 was passed for the period of the war and ‘six months thereafter’ to secure ‘public safety’
and the ‘defence of British India’. The main object of the Act was ostensibly to prevent communication with the ‘enemy’, obtaining information, spreading false reports, jeopardising the
safety of public property or such activities which the government saw as prejudicial to the British
interests during the war.
There was no right of representation against detention under this Act. Unlike in Britain, the
subordinate officers in India had the power of detention under the Act. The Act also provided for
certain offences to be tried by special tribunals, which were required to follow the procedures laid
down by the ordinary criminal law, and could pass any sentence under the law, including that of
death. Their decision was final. By the end of the war, the colonial government, armed with repressive measures, was able to crush the revolutionary terrorist movement in Bengal and Punjab.
The officials in India, however, attempted to make wartime restrictions on civil rights permanent
by passing the Anarchical and Revolutionaries Crimes Act in 1919, following the recommendations
of the Sedition Committee—or the Rowlatt Committee—which was set up to seek measures for
the suppression of revolutionary activities in India. The Rowlatt Act provided for the setting up
of special courts or an investigating authority to hear cases in camera, and allowed detention for
a period of two years. The countrywide protests against the Rowlatt Act and subsequent firing by
troops at Jalianwala Bagh resulted in severe unrest in Punjab. The colonial government responded
by promulgating the Martial Law Ordinances (I to VI) of 1919 between 14 April 1919 and 27 May
1919. The provisions of the Rowlatt Act were, however, not implemented. The Act was repealed
in 1922 following widespread protests against it.
The 1920s and the 1930s saw a spate of revolutionary terrorist activities. A number of youth
organisations came up inspired by revolutionary zeal and with strong faith in conspicuous acts of
self-sacrifice. One of these groups in Northern India was the Hindustan Socialist Republican Army
236
Ujjwal Kumar Singh
and its more ‘public’ youth wing, the Naujawan Bharat Sabha. The period from 1930 to 1934 is
considered the most intense phase of revolutionary terrorism in India, and probably evoked the
most intense repressive measures from the government. The communists were the other group
that heightened its activities during this period, especially among the trade union and the labour
organisations, and were perceived as a grave threat by the colonial government. One recurrent
way of tackling this ‘Bolshevik’ menace in colonial India, a trend which recurred after Independence, was the institution of so-called conspiracy cases. These included the Peshawar Conspiracy
Cases (1922–27), the Kanpur Bolshevik Conspiracy Case (May 1924) and, most famous, the
Meerut Conspiracy Case (March 1929),29 which involved 31 prominent communist and other
trade union leaders.
The Bengal government initially resorted to Regulation III of 1818 to intern terrorists. Later,
an emergency measure, the Bengal Criminal Law Amendment (BCLA) Ordinance was promulgated on 25 October, 1924. Valid for six months, the Ordinance allowed the government to try
cases involving terrorists before a tribunal without a jury and without the right to appeal, and to
arrest and detain suspects without trial. Under its Emergency powers, the government promulgated
Bengal Ordinances IX and XI of 1931. Besides providing for in camera and in absentia trials of
revolutionaries by special tribunals and special magistrates, it also empowered the tribunals to take
cognisance of offences for which an accused had not been formally indicted. The Ordinance provided for confessional statements made before magistrates to be treated as substantive evidence.
The following description by an ‘experienced official’ perhaps best illustrates the ‘effectiveness’ of
the laws of detention: ‘Next to shooting a terrorist dead, nothing can be comparable in importance as an instrument for paralysing him to one by which one can lock him up.’30
In 1932, the Bengal government, under a provision of the BCLA (Supplementary) Act, 1932
removed nearly 500 detenus over a period of time to a special detention camp at Deoli in Ajmer–
Merwar. Also in 1932, after a hiatus of nearly 10 years, the transportation of prisoners accused of
‘violent crimes’ to the Andamans penal settlement was resumed.31 A large number of such prisoners
were transported between 1932 and 1935, and of 228 prisoners in the Andamans in April 1935.
The outbreak of the Second World War saw the colonial government become increasingly conscientious about safeguarding British interests in the colony and declared an Emergency,
followed by the enactment of the Defence of India Act, 1939. The Defence of India Act gave
extraordinary powers to the government ‘to ensure the public safety and interest and the defence
of British India and for the trial of certain offences’, and empowered both the Central and the provincial governments to make rules for the purpose [Section 2(1)]. The Defence of India Rules (DIR)
framed under the Act inter alia made provisions for detention without trial. Rule 26 authorised the
government to detain a person to prevent him from acting in a manner prejudicial to the ‘defence
of British India’, ‘public safety’, the ‘maintenance of public order’ or the ‘efficient prosecution of
war’. Rule 129(1) empowered a police officer or any other officer of the government authorised by
Penal Strategies and Political Resistance in Colonial and Independent India
237
the Central or provincial government to arrest without warrant any person ‘reasonably suspected’
of acting ‘in a manner prejudicial to the public safety or the efficient prosecution of war…’.
With the promulgation of the Defence of India Act and the rules framed under it, a new nomenclature was added to the list of descriptions for detenus—’security prisoner’—which suggested a
concern for the ‘security’ of the country without hinting at the political motive underlying it.
Emergency measures such as the Defence of India Act and the rules framed under it lapsed on
1 October 1946. The adoption of the Government of India Act, 1935 as the provisional constitution, however, gave both the Central and provincial governments the power to frame laws for
preventive detention. Through the Bengal State Prisoners Regulation (Adaptation) Order, dated
26 August 1947, the Indian government also decided to retain Regulation III. The order was
challenged in court and subsequently upheld by Chief Justice Wali Ullah, who, while criticising
the regulation as ‘highly drastic’ and ‘not in keeping with democratic notions of personal freedom’
and for ‘mixing up ideas of preventive and punitive detention’, upheld it on the grounds that it
had remained on the statute book for more than a century and had been thus preserved in the
statute book as an existing Indian law. The life of a law, in this case Regulation III of 1818, which
had outlived the interests of the British rulers, was now pressed into the service of the State in
independent India.
Detention in Postcolonial India
From the point of view of ‘national consolidation’, the sanction for state coercion and the ‘discourse of order and the rational organisation of power’, as Partha Chatterjee calls it,32 the Nehruvian
era began with Telangana and ended with Naxalbari.33 The discourse of order, augmented by the
legitimacy of self-rule and democracy, ‘glossing over all earlier contradictions, divergences and
differences and incorporating within the body of a unified discourse every aspect and stage in the
history of its formation’.34 The ideological unity of nationalist thought sought its actualisation in
the rational life of the state, which foreclosed the possibilities of any conflict in the drive towards
progress. In this achievement of progress, ‘irrational’ and ‘irresponsible’ violence was not to be
tolerated and the coercive apparatus of the state could be used for the removal of obstructions to
the path of progress and development. For Nehru, state violence was preferable to private violence,
because state violence was likely to be more or less ordered, compared to the disorderly violence of
private groups and individuals…35 [Emphasis added]
It is noteworthy that the armed struggle of the people of Telangana against an oppressive
feudal regime was rendered non-political by Nehru, who labelled it as private violence which
could bring the nation to ‘complete disorder, chaos and mischief ’.36 The communist parties
were banned for their ‘violent activities against the state’.37 The communists, along with members
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Ujjwal Kumar Singh
of Hindu and Muslim communal organisations, were put in prison under the various Public Safety
Ordinances and Maintenance of Public Order Ordinances. The ‘legal’ measures for repressing
political opposition existed against a backdrop of laws which were either enacted after independence or continued from the colonial period.38
In the context of the social and political situation that obtained in the wake of Partition, the
Central government promulgated the Public Safety Ordinance, 1948, which applied to the whole
country and provided for preventive detention for reasons connected with public safety, public
order, relations with foreign powers and the maintenance of peace in the tribal areas. A number of
acts dealing with ‘public security’, ‘maintenance of public order’, ‘public safety’ and ‘maintenance
of essential supplies and services’ were passed by the provinces. Immediately after independence,
the West Bengal government introduced the West Bengal Security Bill, 1947, which allowed
the state government to detain anyone without trial.
The PDA, 1950 was the first preventive detention law to be passed by a predominantly
Congress Parliament only 30 days after the Constitution came into force. While introducing
the Bill, the Home Minister Vallabhbhai Patel explained that labour trouble and the Telangana
movement led by the Communist Party necessitated the measure.39 Specific features of the Act,
particularly those relating to the provisions for an Advisory Board, the maximum period of
detention and the right of the detenu to be informed of the grounds of arrest were modified by
subsequent amendments.
The next phase in which preventive detention was used vigorously by the Indian government
was during the Indo-China war of 1962. The declaration of an Emergency enabled the government to promulgate the Defence of India Ordinance, 1962 and frame rules under it. The Defence
of India Act, 1962 which replaced the Ordinance,40 empowered the Central government to make
rules to secure the defence of India, civil defence, public safety, maintenance of public order
or the efficient conduct of military operations, or to maintain supplies and services essential to
the community.41 The official state of emergency was allowed to persist for several years after the
Indo-China war was over—till, the subsequent wars with Pakistan in 1965 and 1971—with the
result that the government continued to detain people without trial under the Defence of India
Act, 1962.
The Act was used to crush the language riots in Tamil Nadu in 1965. In 1967, the government passed the UAPA, which turned many of the emergency powers under the Defence of India
Act into statutory law. This new Act ensured that any organisation could be declared illegal and
any individual be imprisoned for questioning India’s sovereignty over any of India’s territorial
claims. Throughout this period, the PDA was used alongside the Defence of India Act to curb
political and popular unrest. Later in this chapter, we shall see how the UAPA was amended in
2004 to give permanent statutory status to extraordinary measures contained in the Prevention
of Terrorism Act, 2001.
Penal Strategies and Political Resistance in Colonial and Independent India
239
Between 1970 and 1975, the DIR and MISA became the principal instruments for detaining
political opponents. The DIR were primarily used to detain political activists suspected of being
involved in extreme Left activities. In the early 1970s, the majority of arrested persons belonged
to the Communist Party of India (Marxist) and the Communist Party of India (Marxist-Leninist)
were termed ‘Naxalites’. Some of those detained in the early 1970s continued to be held throughout
the Emergency without being brought to trial.42 The majority of ‘Naxalite’ arrests were made in
West Bengal, Andhra Pradesh, Kerala and Bihar.43 In September 1977, six months after the revocation of the state of Emergency, the DIR were allowed to lapse.
With growing discontent among the peasantry and broad sections of the urban population,
the government increasingly treated each outbreak of disgruntlement as a law and order problem,
armed itself with extraordinary powers, and made massive use of law enforcement agencies including the police, paramilitary forces and the army. The PDA, which had already been renewed
seven times, lapsed in 1969, when, owing to a split in the Congress, the party could not muster
enough support in Parliament to renew the Act. For two years, there was no Central law of preventive detention. The states, however, continued to operate and promulgate their own preventive
detention laws.
The West Bengal government, for example, declared on 10 August 1970 that the provisions
of the Bengal Suppression of Terrorist Outrages Act of 1936—a law used by the British against
the revolutionaries—would be applied again. Under the Act, the police was given the power to
detain persons on suspicion for up to 24 hours. In November 1970, the Prevention of Violent
Activities Act, which provided for detention without trial, was promulgated in West Bengal. This
Act was intended to detain members of the CPI (ML) and the CPI (M) in order to debilitate
their mass organisation.
In the meantime, a massive mobilisation among students in Bihar under the leadership of
Jayaprakash Narayan, a Gandhian Socialist, threatened to assume all-India proportions. In Gujarat,
Morarji Desai was leading a movement against the Centre’s imposition of President’s rule in the
state. A judgement delivered by the Allahabad High Court found the then prime minister, Indira
Gandhi, guilty of corrupt practices in her 1971 election from Rae Bareilly, compounding the
problems for her government. The Janata Front, an alliance of opposition parties, demanded her
resignation. The Supreme Court denied her an absolute stay on the judgement, which allowed
her to continue as Prime Minister but denied her the right to vote in the Lok Sabha. Even as efforts
were being made to begin mass mobilisation against her, Indira Gandhi advised the President to
impose an ‘internal’ Emergency under Article 352 of the Constitution, through which the government assumed extensive powers of arrest and censorship.
With the declaration of a National Emergency on 25 June 1975, under Articles 352(1) and
359(1) of the Constitution, the government suspended the right of access to the courts for the
enforcement of Articles 14, 21 and 22 of the Constitution for the restoration of the fundamental
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Ujjwal Kumar Singh
freedoms of the people. Under such conditions of suspended fundamental rights, MISA assumed
formidable proportions. MISA had been modelled, by and large, on the PDA, 1950 containing
provisions which gave broad application to Articles 22(4), and 22(5) of the Constitution, pertaining to disclosure of the grounds of detention and the opportunities to make representation
against the order. The Defence of India Act, 1971 had introduced some changes in MISA, which
made the conditions of detention more severe.44
After the proclamation of Emergency, MISA was amended by two Presidential Ordinances of
29 June 1975 and 15 July 1975 to make the Act more ‘effective for dealing with the Emergency’.
The two Ordinances were enacted into the Maintenance of Internal Security (Amendment) Act
No. 39 of 1975 on 5 August 1975. The amendment inserted Sections 16A and 18 in the original
MISA, virtually rewriting the Act. The Constitution (39th Amendment) Act placed MISA in the
Ninth Schedule of the Constitution, thereby taking it beyond the scope of judicial review. On
29 April 1976, the Supreme Court upheld the validity of MISA as amended and refused writs of
habeas corpus under Article 226 of the Constitution, which had withstood suspension by the
declaration of a state of Emergency.45 The Constitution (42nd Amendment) Act 1976 further
strengthened the powers of the Central government by providing that no law for the prevention
or prohibition of anti-national activities could be declared invalid on the grounds that it violated
the fundamental rights in Part III of the Constitution.
In 1977, MISA was repealed by the Janata Dal government, which had won a massive electoral
victory in the face of raging anti-Indira Gandhi sentiments. A subsequent attempt made by the
Janata Dal government to bring in a mini-MISA in the form of a Criminal Procedure (Amendment)
Act proved futile.46 Preventive detention laws were, however, enacted by the different political parties
in power in the states of Madhya Pradesh, Jammu and Kashmir, Bihar and Orissa. This rather
broad sweep of events helps to put in perspective the emerging trend of ‘extraordinariness’.
’CUTTING DOWN TREES’47: EXTRAORDINARY LAWS AND THE
EMERGENCE OF INTERLOCKING LEGAL SYSTEM
’Suppression of Disorder’: The Disturbed Areas Acts
Special Acts such as the Andhra Pradesh Suppression of Disturbances Act (Act No. III of 1948),
the Armed Forces (Special Powers) Regulation of 1958, the Nagaland Security Regulation of 1962,
the Assam Maintenance of Public Order Act of 1953, the Assam Disturbed Areas Act of
1955, the Punjab Disturbed Areas Act 1983, and so on, were brought in for the special purpose of
‘suppression of disorder’ and the ‘restoration and maintenance of public order in disturbed areas’.
Penal Strategies and Political Resistance in Colonial and Independent India
241
Under these acts, a state government could declare an area ‘disturbed’ and confer extraordinary
powers to armed forces personnel and the police. Under Section 4 of the Punjab Disturbed
Areas Act:
Any Magistrate or Police Officer not below the rank of Sub-Inspector or Havildar in case of the
Armed Branch of the Police may, if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning, as he may consider necessary, fire upon,
or otherwise use force, even to the causing of death…
The Andhra Pradesh Suppression of Disturbances Act gives wide powers to police personnel
of the rank of sub-inspector upwards to open fire without warning ‘upon persons found carrying
weapons or things capable of being used as weapons’ (Section 5), simultaneously protecting the
officer from any ‘prosecution, suit or other legal proceedings’ ‘except with the previous sanction
of the provincial government’. The Nagaland Security Regulation gives power to the authorities
to remove by force ‘all residents or any class of residents from the disturbed area for a specified
period (5A[1][a]). In the North East and in Punjab, the Disturbed Areas Acts were used against
ethnic movements and augmented the special powers of the armed forces.
In Andhra Pradesh, the Suppression of Disturbances Act was used to suppress the peasant
movement in parts of Telangana area. A fact-finding investigation undertaken in November 1978
by the People’s Union for Civil Liberties and Democratic Rights in the Jagtiala and Sirsilla taluks of
Karimnagar district, which had been declared ‘disturbed areas’ in October the same year, revealed
that the peasant movement was a manifestation of extreme inequalities in the land ownership patterns in the region. Of the peasant organisations, the Ryotu Coolie Sanghams were widespread
in both taluks, having been present since 1972 in Sirsilla and in Jagtiala till after the Emergency.
Women’s organisations known as Ryotu Mahila Sangham and the CPI’s All India Kisan Sabha
and the Khet Mazdoor Sangh were also active in the districts. Concerning the membership of the
sangham in a village, a peasant retorted:
Who is not except the dora (landlord)?…. The dora used to collect fines, bribes. We were abused
and beaten. Our forefathers and fathers put up with it. We are still bonded labourers. How can
we continue to be so? That’s why we have organised ourselves as a Sangham.48
On October 20, both taluks were notified as ‘disturbed areas’ under the Andhra Pradesh Disturbed
Areas Act 1948, which had been, in turn, adopted from the Madras Suppression of Disturbances
Act enacted at the height of the Telangana peasant’s armed struggle (1946–51) and its spillover
in the Andhra areas of the Madras Presidency. Apart from the powers that the Act conferred on
armed police personnel, offences against person and property, which in the normal course entailed
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Ujjwal Kumar Singh
a maximum punishment of life imprisonment, could attract ‘capital punishment’. The factfinding committee reported widespread repression of peasants by both landlords and the police,
which included physical assault and arrest, sexual molestation and rape of Mahila Sangham
members by the landlords and their ‘goondas’, an atmosphere of fear due to the proliferation of
police camps in the areas, and a general rolling back of the gains that the peasants had made in
the region in eroding the power of the landlords.49
Anti-terror laws: TADA, POTA and UAPA 2004
The Indian Parliament has, so far, enacted two anti-terror laws—TADA 1985, 1987 and POTA
2002. TADA lapsed in 1995 and POTA was repealed in 2004. POTA’s repeal was followed by the
amendment of an existing law, UAPA 1967, to retain specific provisions of POTA that pertained
to punishment for terrorist activities and the banning of terrorist organisations. UAPA 2004
may then well be considered the third anti-terror law in India. Official justifications surrounding
anti-terror laws project them as problem-solving measures asserting their indispensability. If
one were to identify some of the characteristic features of extraordinary laws, or, alternatively,
respond to the question, ‘What makes laws like TADA and POTA extraordinary?’ the following
features could perhaps be listed:
(1) These laws come with objects and intents proclaiming the need to respond to specific
problems of extraordinary nature.
(2) It follows from the fact of extraordinariness that these laws are temporary and that their
lives are coterminous with the extraordinary events they intend to overturn.
(3) Since they are extraordinary measures in response to extraordinary events/situations,
they consist of extraordinary provisions pertaining to arrest, detention, bail, investigation,
evidence, trial and punishment.
TADA was enacted in May 1985, initially for two years, by a Congress government, in the
context of the separatist movement for Khalistan. It was re-enacted first through an Ordinance
in May 1987 which also made it more stringent, giving more powers to the Central government
in matters of constituting Designated Courts to try TADA cases and making rules for carrying out
the provisions of the Ordinance. The Act which replaced the Ordinance (TADA 1987) introduced
two more changes which made it more deterrent and enhanced its extraordinary nature: (a) the
punishment of persons in possession of arms and ammunitions as specified in the Arms Rules
1962 and other explosive substances; and (b) confessions made before a police officer not lower in
rank than the Superintendent of Police to be admissible as evidence in the trial. TADA 1987 was
Penal Strategies and Political Resistance in Colonial and Independent India
243
extended and expanded five times by the Parliament, each time with reduced participation and debate, till it expired in 1995 following opposition from the Bharatiya Janata Party and the Left parties.
Other attempts to bring in a TADA-like law proved desultory until April 2001, when the 173rd
Report of the Law Commission submitted what it called a modified version of TADA for the
government’s consideration. The Prevention of Terrorism Ordinance (POTO) was promulgated
on 24 October 2001 for ‘the prevention of and for dealing with terrorist activities’ in the immediate context of the 11 September 2001 attacks on the World Trade Center towers in the US. In
the period that followed, the ‘international consensus’ against terror, along with the UN Security
Council Resolution no. 1373 adopted on 28 September 2001, became the most frequently quoted
justification for an anti-terror law in India. With the attack on the Parliament building in
New Delhi on 13 December 2001, a second Ordinance was promulgated on 30 December 2001.
The Prevention of Terrorism Bill was presented in Parliament in the Budget Session amidst opposition by the Congress and the Left parties, among others, and reservations by several state
governments. Eventually, the Bill was passed on 26 March 2002 in an extraordinary joint sitting
of Parliament, convened after its rejection by the Rajya Sabha.
Both TADA and POTA lay down extraordinary measures pertaining, in particular, to bail, the
admissibility of confessions made to the police and the setting up of Designated Special Courts
with greatly enhanced powers. Apart from making bail stringent, both facilitated prolonged
detention by providing for arrests without warrant, extending the period of police and judicial
custody and the period within which the chargesheet could be drawn. Most of these measures came
explicitly as exceptions to provisions that existed in ordinary law. Both gave evidentiary value to confessions made to police officers, allowing ‘certain confessions made to police officers to be taken into
consideration’, making a departure, thereby, from the ordinary law and Constitutional principles
which offer ‘protection against self-incrimination’.
The admissibility of confession to a police officer as legal evidence was first permitted in India
under Section 15 of TADA 1987. The admissibility of confession before a police officer was upheld
by the Supreme Court in Kartar Singh vs State of Punjab50 primarily as an ‘overwhelming need’,
and procedural safeguards were prescribed to dilute the ‘fruit of the poisonous tree’ doctrine. The
Supreme Court justified the special provision of Section 15 of TADA pertaining to confession
by taking recourse to the specific context and concern of the Act, namely, terrorism. In the process, the apex court affirmed the existence of a class of ‘offenders’ under TADA—‘terrorists and
disruptionists’—as distinct and separate from ordinary criminals who could be tried under ‘normal’
laws, as well as a distinct class of ‘offences’—terrorism–an aggravated offence, requiring the special
provision of Section 15.
Both TADA and POTA were used against minorities, political adversaries and dissidents,
peasants, tribals and workers. With subsequent extensions, TADA assumed more general application as its area of operation, which had begun with just one state and two union territories,
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Ujjwal Kumar Singh
covered by 1993 most of the country: by that year, TADA was in force in 22 out of 25 states and
two out of seven union territories. The exceptions were Kerala, Orissa, Sikkim, the Andaman and
Nicobar Islands, Dadra and Nagar Haveli, Daman and Diu, Lakshadweep and Pondicherry. While
immediate events formed the context for the introduction and continuation of the Act (bomb
blasts in Delhi and other places in 1985, and the Bombay blasts in 1993), the justifications cited
for the extension of the Act were the expansion of terrorist activities from Chandigarh and Punjab
to Delhi, Haryana, Uttar Pradesh and Rajasthan, and in specific states like Punjab, Kashmir and
Assam. Significantly, states that did not figure in the official list of ‘problem states’, most notably
Gujarat, also used TADA extensively.
It may be pointed out that TADA could come into force in a region when a state or Central
government notified an area as ‘affected’ (Section 2[1][f ]). Whereas no criterion for notification
was laid down in the Act, the definition of terrorist acts (Section 3) and disruptive activities
(Section 4) was wide enough to cover a wide range of activities. While the Act itself had features
which defied ‘due process’, giving it the wherewithal for the gross violation of human rights, the
most significant pattern which emerged in its implementation was the creation and reproduction of
extraordinariness in relation to specific identity struggles. Most movements for self-determination
were subsumed under the generic labels ‘terrorist’ and ‘disruptive’, which depoliticised them and
dismembered them into specific acts of violence that demanded extraordinary legal solutions,
procedures and punishments. Thus, the Act conceived of identity struggles as occupying a space
‘outside’ the political community, since they were not only against the government, which embodied the democratic will of the people, but against the people themselves.
More significant, perhaps, is the manner in which the Act came to be widely perceived as communal and sectarian. TADA was used generally against minorities, who were arrested under
the Act simply because they were Muslims or Sikhs. A large number of those arrested in Delhi51
and Uttar Pradesh were Sikhs.52 In Gujarat53 and Rajasthan,54 the majority of those arrested were
Muslims. The Sikhs were the first to come under its purview: almost all the accused in Punjab
were Sikhs, not all of whom were connected with the Khalistan movement. Large numbers of
Sikhs, who had settled in the Terai region of Uttar Pradesh during Partition, became victims of the
generalised repression in the wake of Khalistani violence in the area. Again, a significant number
of Muslims were arrested in Jammu and Kashmir for their association with the struggle in the
region. Rajasthan was among the four states mentioned in the initial ‘Statement of Objects and
Reasons’, and the arrest of Muslims under the Act was commonly reported. On 18 March 1991, the
then Home Minister, Digvijay Singh, reported in the Rajasthan Assembly that of the 228 arrested
under TADA, 101 were Muslims and 96 Sikhs. Charges could not be proved in 178 cases. In
July 1993, the government withdrew cases against 72 persons. By 1993, Gujarat had surpassed
Penal Strategies and Political Resistance in Colonial and Independent India
245
Punjab’s 14,457 TADA arrests, with 3,452 more TADA arrests added to its 1992 figure of 14,094.
In Gujarat, TADA was applied in cases associated with communal violence: those arrested were
Muslims, a phenomenon which was repeated with POTA in 2002.
The selective application of the Act against minorities was apparent from the fact that whereas
TADA was not brought into force when large-scale violence against Muslims took place in the
Bombay riots, Muslims became the first to be brought under the purview of TADA after the bomb
blasts. Kashmiri Muslims were yet another ethnic group that bore the brunt of the Act. Not only
has the use of TADA against ethnic minorities almost inextricably attached the epithets ‘extremists’,
‘terrorist’ and ‘anti-national’ to them, turning them into objects of suspicion, assertions of democratic self-determination, for example, in tribal movements55 in Vidarbha, Telangana, Godavari
and Bastar forests, have also been brought under the scope of the Act.56 In the Northeastern states,
the assertion of ethnic specificity was characterised as a threat to national security, sovereignty
and integrity. In Tripura, the Act was brought into force in the wake of violence by the All Tripura
Tribal Force (ATTF) in October 1991. In Assam, three Members of the Legislative Assembly of
the Bodoland Legislature Party were arrested in connection with bomb blasts in Guwahati and
Dispur. The Assam Gana Parishad government used the Act extensively against Bodos and Karbis.
In the wake of the riots which followed the demolition of the Babri Masjid in December 1992, a
number of people were arrested in Nowgong. About 100 persons were arrested in the Jamunamukh
Police Station limits alone. Among those arrested was Abdul Khaleque, who was accused of
having participated in the riots on 8 December 1992. The Designated Court later pointed out
that Khaleque had been in jail since 9 September under a different TADA case.57
The implementation of POTO/POTA showed that while investigation and trial in cases of
violence against Muslims in Gujarat languished, POTA was immediately invoked in the Sabarmati
Express coach-burning case in February 2002. Six chargesheets were filed in the POTA case brought
against the 131 accused, all of whom were Muslims. Most of the accused remained in prison without having been brought to trial for over a year.58 Significantly, the Review Panel set up to review
POTA cases under the POTA Repeal Act, finding no prima facie case under POTA in the Godhra
case, recommended in May 2005 that POTA cases against the accused be dropped.
POTA, like TADA, was used against minorities in Gujarat and Maharashtra; against poor peasants
and tribals in Jharkhand, Andhra Pradesh, Maharashtra and Uttar Pradesh for alleged Naxalite
activity; against journalists and politicians in Tamil Nadu and Uttar Pradesh; against militants
in Jammu and Kashmir and Manipur; against so-called terrorist organisations, including Islamic
organisations like the Students Islamic Movement of India (SIMI), CPI(ML) organisations like
the People’s War Group (PWG) and the Maoist Communist Centre (MCC), and organisations
like Akhil Bharatiya Nepali Ekta Samaj (ABNES).
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Often, however, as K. Balagopal described it in the instance of Andhra Pradesh, suspected
terrorists were more likely to be killed in encounters than brought to trial:
…if the government is going to claim that the purpose of an Act like POTA is to get hold of
and punish those who actually carry weapons and commit ‘terrorist acts’ as described in Section
3(1), they are telling a lie. Because, in Andhra Pradesh, anyone apprehended under these conditions will be killed, not brought before the law…. In the last eight years, about 1,200 people
have been killed in encounters in Andhra Pradesh….59
Similar sentiments emerged in an article published in January 2002 in Economic and Political
Weekly, which argued that the specific contexts obtaining in Jammu and Kashmir made even a preventive detention regime desirable and justifiable, ‘if only to reduce the number of illegal killings’
that occur.60 The article elaborated that in the mid-1990s, the number of detenus in Jammu and
Kashmir was around 3,000, incarcerated equally under Public Safety Act and TADA. In early 2002,
official sources reported 500 detenus, while non-official sources placed the numbers at about 1,500.
These are, the author argues, very small numbers, since the official figures since January 1990
placed the number of arrested at around 35,000. The number of detenus, the author points out,
cannot increase, since instead of being detained, people are killed extrajudicially. In the context of
Kashmir then, the author argues, if detention were the only choice, for all its abuses, it seems
positively benign. The focus of human rights groups, therefore, suggests the author, should
be on preventing custodial deaths, even if in the short term it meant accepting greater use of
detention.61
UAPA 2004: The Permanence of the Temporary
The repeal of POTA figured prominently in the Common Minimum Programme (CMP) of
United Progressive Alliance (UPA), which replaced the National Democratic Alliance (NDA).
The debates on the repeal of POTA obfuscated its continuing effect on existing laws, political
and legal structures, and the lives of people. The CMP released on 27 May 2004 stated that ‘the
UPA has been concerned at the manner in which POTA has been grossly misused in the past two
years. There will be no compromise in the fight against terrorism. But given the abuse of POTA
that has taken place, the UPA Government will repeal it, while existing laws are enforced strictly’.
Clearly, in the CMP, the basis of POTA’s repeal was not because the UPA government thought
that the law was inherently undemocratic but because it had been ‘misused’. The logic behind the
repeal appears to have been that while the Act itself was fine, it was merely ‘grossly misused over
the last two years’. This has led to a situation where POTA has been repealed but not rolled back,
which is to say that while the Act may not be invoked any longer, cases already registered under the
Penal Strategies and Political Resistance in Colonial and Independent India
247
Act have been sustained and put through a time-bound review process. An especially empowered
Review Committee has been provided for to identify ‘appropriate’ POTA cases—cases in which,
according to the Review Committee, POTA has not been ‘misused’—for continued trial.
Moreover, the repeal of POTA has been accompanied by the amendment of the UAPA, giving
extraordinary provisions a hitherto elusive permanence. This erosion of the boundaries between
the ordinary and the extraordinary may be seen as a preferred official policy which was articulated
in the recommendations of the Malimath Committee,62 the name by which the Committee
for the Reform of the Criminal Justice System is more commonly known. While the repeal of
POTA does away with the provisions relating to bail and confessions which had eroded personal
liberties and subverted due process, the provisions pertaining to the definition of terrorist acts,
the banning of terrorist organisations, and the interception of electronic communication have
been retained through importation into the UAPA. The UPA government justified the retention
of these provisions in the debates in Parliament on the ground that investigating agencies needed
legal guidelines to identify terrorist activities. The persistence of legal guidelines from POTA
has meant that the definition of terrorist activities in POTA, which was vague and devoid of any
objective criteria, has been retained.
Moreover, the inclusion of POTA provisions pertaining to ‘terrorist activities’, and ‘terrorist
organisations’ has ensured the continued replication of offences already listed under the ordinary
law as ‘terrorist’ acts. The use of explosives, disruption of community life and destruction of property
are, for example, already punishable offences under the law. Similarly, sedition and waging war are
also offences under Sections 124-A and 121 of the IPC. This replication has ensured that a range
of activities can be converted into terrorist crimes, subjected to special procedures of investigation
and trial, and enhanced punishment. The Parliament attack case showed that the charges under
ordinary law, when augmented by charges under POTA, brought the accused the maximum possible
punishment under POTA in the Special POTA Court judgement.
AFSPA: Extraordinariness in the North East
The discussion around the enactment, amendment and repeal of POTA often obfuscates the
distinctiveness of another extraordinary law, the Armed Forces (Special Powers) Act (AFSPA),
which burst back in public memory with the protest, by a group of elderly and middle-aged
women from different organisations of the Meira Paibi, against the rape of Thangjam Manorama
by soldiers of Assam Rifles.63 The AFSPA gives extraordinary and unaccountable powers to the
armed forces, and is part of the panoply of ‘legal’ measures that have been devised to buttress
border regions. The logic of this buttressing manifests the manner in which the territory and the
people of the border regions are incorporated into the national-political. The construction of the
region as a ‘frontier’, a land to be buttressed and secured, gives the people a ‘frontier/marginal’
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Ujjwal Kumar Singh
existence. This means that not only are the differences among the people of the area overlooked,
but the North East comes to be construed as a homogeneous unit that is ‘different’ from the rest
of India. Any popular assertion of difference is ‘dangerous’, invoking the label ‘disturbed’ for the
region, whose control through extraordinary ‘counter-insurgency’ measures becomes imperative.
The people of the region themselves are seen as ‘defiant tribes’ who have to be ‘assimilated’ and
‘Indianised’. Thus, while the nation’s territory is sought to be secured by force, the ideology of the
nation also ensures the exclusion of the people of the border lands, as ‘outsiders’.
What is significant, moreover—and this is where the AFSPA differs starkly from POTA—is
that it externalises and excises from the political community, entire populations of a region. While
the AFSPA caters especially to the ‘extraordinary’ situation in the North East, other repressive
laws which operated in the rest of the country—the NSA, the UAPA 1967/2004, and the lapsed
TADA and POTA—were and are in force here. In addition, other laws promulgated at the state
level to ‘further control the situation’ are also in use, namely, the West Bengal Security Act which
was extended to Tripura and replaced by the Tripura Security Act, the Nagaland Security Regulation,
the Meghalaya Preventive Detention Act, etc.64
The AFSPA 1958 is among the most draconian instruments of security and control that has
been used in the Northeastern states. In April 1958, a few months before the enactment of the
AFSPA, The Armed Forces (Special Powers) Regulation was promulgated to suppress the Naga
resistance. The Regulation conferred unlimited powers on the security forces in disturbed areas
in the Kohima and Mokokchung districts of the Naga Hills–Tuensang Area. The Regulation gave
the Governor of Assam the power to notify these areas as disturbed, allowing to come into play
in these areas the special powers sanctioned by the Regulation to security personnel. The AFSPA
was enacted in September 1958, and conferred special powers upon armed forces personnel in
Assam and Manipur. It was amended in 1972 to extend to all the Northeastern states.
In 1990, the AFSPA was enacted for application in the state of Jammu and Kashmir. Under
these Acts, security forces are given unrestricted powers, once an area is declared disturbed, to
carry out their operations, shoot, arrest and search in the name of ‘aiding civil power’ and ‘maintaining public order’. These powers also provide unaccountability, since the security personnel
are protected from prosecution and legal proceedings for their actions unless the Central government sanctions them.
CONCLUSION: THE SILENT EROSION
The manner in which political resistance has been dealt with in India through ‘legal’ measures
reveals a progressive pattern of the dismantling of due process, effected through preventive detention
laws and a series of extraordinary laws such as the Disturbed Areas Acts, the AFSPA, and anti-terror
Penal Strategies and Political Resistance in Colonial and Independent India
249
laws like POTA and TADA. Such laws are based on the premise that ordinary legal measures are
inadequate while addressing ‘crimes’ of an extraordinary nature, which demand extraordinary
measures. Extraordinary laws in several countries amend specific statutes of ordinary law, bringing
about a symbiotic relationship between ordinary criminal law and emergency legislation. But the
unfolding of extraordinary laws in India reveals a distinctive pattern of concurrence and interlocking between the extraordinary and the ordinary, whereby ordinary laws assume extraordinary
forms through their coincidence in trials under extraordinary laws, or extraordinary provisions
flow into ordinary laws, giving them a permanence that was hitherto elusive. This process of
interlocking manifests a process of ‘cutting down trees’, an expression used by Robert Bolt to
refer to the progressive erosion of laws that are ‘planted thick from coast to coast’ to guarantee the
rule of law.
The repeal of POTA and the synchronous amendment of the UAPA show the development
of a complex and interlocking system of laws so that laws pertaining to so-called ordinary crimes
and those claiming to deal with extraordinary situations intertwine and come to traverse common
grounds. The procedural changes and a separate system of dispensation of justice that extraordinary laws espouse, validated by hegemonic discourses of nationalism and a simultaneous
construction of ‘suspect communities’, and the process of intermeshing and overlap with ordinary
laws and legal practices to deal with organised crime, have eroded existing legal and judicial institutions and processes, manifesting thereby the ‘violence of jurisprudence’.65 UAPA 2004, which
was enacted amidst widespread movement against the AFSPA in Manipur, confirms a dangerous
trend, whereby extraordinary law becomes a model for remapping ordinary criminal jurisprudence. Considering that all such laws are political, serving the purpose of subduing and snuffing
out political and ideological opposition, the changes in the UAPA should be a cause for grave
concern.
The unabated concern of both the colonial state and that in independent India with ‘protecting’
themselves ‘against the successful rebel’ may indeed be seen as springing from distinct practices
of rule. The principle of colonial difference and deferral, encapsulating the paradoxical relationship between the universalist claims of modernity and colonial governmentality, is evident in
the recourse to Regulations in the colonial period. The ideology and practice of colonial governmentality in the British Empire in the 18th century was, for example, shaped by the compulsions
of not just holding together a vast and heterogeneous population, but also of ruling them without
representation. While the former strengthened the domain of state sovereignty, the latter hedged
it in with the question of legitimacy. The legitimation crisis that sprung from ruling without
representation, could, however, be warded off by claiming, as Stuart did, that these laws were made
necessary owing to the different conditions that existed in the colony. Colonial difference meant
that while forms of governance in the colony could never be a mere extension or replication of
the political and legal institutions that obtained in Britain, they were always held out as a deferred
promise which would materialise, paradoxically, with the end of colonial rule.
250
Ujjwal Kumar Singh
The continued recourse to detention and other extraordinary laws in independent India
reveals, at one level, the primacy reasons of state assume in practices of rule. At another level,
however, they also reveal the ways in which the donning of ‘authoritative control’ by the State is
sustained by claims of preserving democracy and representing the will of the people. The massive
proliferation of extraordinary or emergency laws in countries all over the world brings home the
fact that democracy can actually be implicated in the process of legitimation. Yet, the postcolonial
period, with its distinguishing feature of political democracy, cannot, on that count, be seen as
totally distinctive.
It is remarkable that the principle of supreme necessity continues to justify exceptions. Judicial
responses to petitions challenging the constitutional validity of anti-terror laws have always been
confirmatory of the executive’s concerns regarding ‘supreme necessity’. The Supreme Court has
not only endorsed extraordinary procedures on the ‘rationale of supreme necessity not covered
by regular law’, it has also conformed to ‘reasons of state’, upholding the executive’s delineation
of ‘necessity’—public order, national security, waging war against the state, conspiracy against
the State, terrorism and so on. The Supreme Court’s decisions upholding the constitutional validity
of POTA and TADA may be seen as attributing legality to the various procedural exceptions that
these laws prescribed. Yet, there are layers within the judgements and the other judgements that
followed (for example, in the Parliament attack case) where the Supreme Court seeks to carve
out spaces of substantive liberty. Nonetheless, substantive liberty, which holds out the promise
of weaving rights into legal formalism based on the assumption that citizens have moral and political rights to be enforced by and through the courts, remains inadequately realised, precisely
because the safeguards are sought to be woven into laws founded on principles of procedural
exceptionalism.
APPENDIX 1
Table A.1 showing particulars of the cases filed on the peasants during 1978–79 in different taluks of
Andhra Pradesh which were declared ‘disturbed areas’, giving immense powers of arrest to the police.
Table A.1: Particulars of Cases Filed on the Peasants, 1978–79
S.N. Name of the Area
1
2
3
4
Lothunur
Chinna Metpally
Bornapally
Madhunur
Section of IPC
No. of Persons
Involved and Jailed
415, 307, 395
307, 395
307, 395
302
400
600
500
6
No. of Persons No. of Villages Taluks Involved
Arrested in Cases
Involved
in Cases
90
80
60
6
7
8
6
1
Jagtial
Metpally
Jagtial
Jagtial
(Table A.1 continued )
Penal Strategies and Political Resistance in Colonial and Independent India
251
(Table A.1 continued )
S.N. Name of the Area
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
Section of IPC
Madhunur
395, 387, 120(B)
Madhunur
395, APSOA
Gummalapur
307, 395
Shekalla
147, 148
Chinaloor
Ayodhya
147, 120(B)
Ayodhya
147, 120(B)
Mallannapeta
Kannapuram
394, 395
Kannapuram
Datnur
307, 120(B)
Uppumadige
307
Gopalapuram
395, 120(B)
Buggaram
145, 147, 535
Raghuramulukota
Bheemrajapalle
397
Raganidu
395, 365
Julapalli
Thelukunte
Gudem
107
Madipalli
Jupaka
Thummanapalli
302
Raikal
Nagula
107
Nagula Malliala
307
Potharam
Kannala
107
Mallepalli
107, 147
Mallepalli
Civil
Ramayyapalli
107
Ramayyapalli
Nagarampalli
Ranapuram
Civil
No. of Persons
Involved and Jailed
14
125
100
400
1
40
80
20
12
3
28
6
15
10
17
12
800
40
30
25
25
7
5
50
15
24
40
12
7
13
12
11
15
30
No. of Persons No. of Villages Taluks Involved
Arrested in Cases
Involved
in Cases
14
42
30
50
1
40
80
20
12
3
27
2
6
6
17
12
300
40
30
15
20
7
5
45
15
22
40
12
7
12
11
–
–
10
2
2
2
1
1
2
1
1
1
1
2
5
6
1
4
21
1
1
1
1
4
1
4
1
3
1
1
1
1
1
1
1
1
All
Jagtial
Metpally
Jagtial
Jagtial
Jagtial
Jagtial
Jagtial
Jagtial
Jagtial
Jagtial
Jagtial
4, 5 Taluks
4, 5 Taluks
Jagtial
Jagtial
Pettapalli
–
–
–
Huzurabad
–
–
–
Karimnagar
–
–
Manthany
–
–
–
–
Peddapalli
–
Source: Andhra Pradesh Civil Liberties Committee, Life Liberty and Livelihood: Civil Liberties in Andhra Pradesh Vol. I , 1996,
pp. 38–39.
NOTES & REFERENCES
1. The first Indian Law Commission was set up by a government order of 15 June 1835 with the following members:
T.B. Macaulay, J.M. Macleod, G.W. Anderson and F. Millett. It laid the draft of the penal code before the GovernorGeneral of India on 2 May 1836, which was finalised for print in October 1837.
2. For a detailed discussion regarding this episode, see Chapter 1 in Donogh, W.R. 1917. The History and Law of
Sedition. Calcutta: Spink and Co. The Tilak and Gandhi trials were held under Section 124A (sedition).
252
Ujjwal Kumar Singh
3. Appendix, Note C in Cameron, C.H. and D. Eliot. 1888. The Indian Penal Code as Originally Framed in 1837, The
Second Report on the Indian Penal Code by the Indian Law Commissioners, p. 117. Madras: Higginbotham and Co.
4. See Gross, Oren. 2001. ‘Cutting Down Trees: Law Making Under the Shadow of Great Calamities’, in Ronald D.
Daniels, Patrick Macklem and Kent Roach (eds), The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill,
p. 41. Toronto: University of Toronto Press. Carl J. Friedrich suggests that ‘reasons of state’ are considerations, which
exist ‘whenever it is required to insure [that] the survival of the state must be done by the individuals responsible
for it, no matter how repugnant such an act may be to them in their private capacity as decent and moral men’.
Friedrich, Carl J. 1957. Constitutional Reason of State—The Survival of the Constitutional Order, pp. 4–5. Providence:
Brown University Press.
5. Ever since the enactment of the PDA in 1950, as Upendra Baxi points out, the Indian legal system has managed
the coexistence of the Preventive Detention System (PDS), an institution authorised by the Constitution of
India itself, with the fundamental right to personal liberty. The preventive detention legislation has been increasingly used not just to deny fundamental rights to the political opposition but also as a parallel legal system in aid
of the Criminal Justice System (CJS). See Baxi, Upendra. 1982. The Crisis of the Indian Legal System. New Delhi:
Vikas, p. 30.
6. See for details of this formulation Singh, Ujjwal Kumar. 2004. ‘State and the Emerging Interlocking Legal Systems
in India: Permanence of the Temporary’, Economic and Political Weekly, 10–16 January, 39(2).
7. Hillyard, Paddy. 1993. Suspect Community: People’s Experience of Terrorism Acts in Britain, p. 263. London:
Pluto Press.
8. Sim, J. and P.A. Thomson. 1983. ‘The Prevention of Terrorism Act’, Journal of Law and Society, 10(1): 75.
9. The table has been drawn on the basis of data given in the Shah Commission Report (1978), Chapter XIX,
‘Arrests and Detentions during the Emergency’, pp. 1–152.
10. The Shah Commission Report 1978, p. 58.
11. Ibid., p. 64.
12. Ibid., p. 96.
13. See for details, the study of V.S. Rekhi cited in Ansari, Iqbal. 1986. ‘Preventive Detention: Its Incompatibility
with the Rule of Law’, in A.R. Desai (ed.), Violation of Democratic Rights in India, Bombay: Popular Prakashan.
14. Ram, Mohan. 1986. ‘Civil Rights Situation in India’, in A.R. Desai (ed.), Violation of Democratic Rights in India,
p. 93. Bombay: Popular Prakashan.
15. Balagopal, K. 1988. Probings in the Political Economy of Agrarian Classes and Conflicts, p. 104. Hyderabad: Perspectives Press.
16. See Appendix 1.
17. Balagopal, K. 1988. Probings in the Political Economy of Agrarian Classes and Conflicts, p. 102. Hyderabad: Perspectives Press.
18. Rudra, Ashok, ‘The Politics of Legal Defence’, Frontier, 6(13): 4.
19. See for further details, Faqir Hussain. 1989. Personal Liberty and Preventive Detention, p. 83. Peshawar: University
Foundation Press.
20. A short title, ‘Regulation III of 1818’ was given by the ‘Repealing and Amending Act, 1897’ (5 of 1897), Sch. III,
Acts, Vol. IV.
21. This Regulation was extended to Ajmer-Merwara (Ajmer Laws Regulation, 1877), Burma (Arakan Hill District
Laws Regulation, 1874; Burma Laws Act, 1898), Central Provinces (Central Provinces Laws Act, 1875), Coorg
(Scheduled Districts Acts, 1874), Eastern Bengal and Assam, including its scheduled districts (Laws Local Extent
Act, 1874 and Scheduled Districts Act, 1874), North-West Frontier Province (North-West Frontier Province Law
and Justice Regulation, 1901), Punjab (Punjab Laws Act, 1872), United Provinces (Laws Local Extent Act, 1874)
and Oudh (Oudh Law Act, 1876) by the enactment of respective local laws.
22. Section 491(3) of the ‘Code of Criminal Procedure, 1898’.
Penal Strategies and Political Resistance in Colonial and Independent India
253
23. Delivering judgement in the Ameer Khan case, Justice Norman observed ‘The Regulation differs from Acts passed
for the suspension of the Habeas Corpus Act in this, that it is not a temporary Act; but if the danger to be apprehended from the conspiracies of people of such character as those I have mentioned, is not temporary, but from
the condition of the country, must be permanent, it seems to me that the principles which justify the temporary
suspension of the Habeas Corpus Acts in England justify the Indian Legislature in entrusting to the Governor General
in Council an exceptional power of placing individuals under personal restraint when, for the security of the British
dominions from foreign hostility, and from internal commotion, such a course might appear necessary…’ Bengal
Law Report, 1870, Vol. VI, pp. 454–55. The ‘conspirators’ referred in this case were the members of the Wahabi
sect who had declared rebellion against the British rule. See for further details, Noorani, A.G. (ed.). 1976. ‘The
Great Wahabi Case’, in Indian Political Trials, pp. 73–95. New Delhi: Sterling.
24. See memorandum dated 14 July 1909 by H.A. Stuart on ‘The Forms and Ceremonies Connected with the Application of Regulation III of 1818’, submitted for the information of the Secretary of State for India. File No. 27,
H(J), Deposit, July 1909, NAI, pp. 2–3.
25. Ibid., pp. 2–3.
26. Mill, J.S. Representative Government, cited in Ibid., p. 3.
27. The First World War strengthened the revolutionary terrorist movement by enabling alliances with Britain’s wartime
enemies, especially Germany and Turkey. Indian revolutionaries operated from foreign soil; the Ghadr movement
in particular challenged the colonial government from its bases in North America. The Home Rule movement
was an expression of more moderate sentiments against colonial rule.
28. O’Dwyer, Michael. 1925. India As I Knew it, 1885–1925, p. 107. London: Constable and Company. According
to another estimate 46 Ghadr revolutionaries were executed during the same period. See Sarkar, Sumit. 1983.
Modern India, 1885–1947. Delhi: Macmillan.
29. The Meerut Conspiracy Case was one of the most long-drawn-out trials in colonial India, involving almost the
entire leadership of the communist and trade unionist movement of the country and lasting for three-and-a-half
years. The accused were refused bail and denied trial by jury. The conspiracy case signified British attempts to
crush any organised communist activity in India; in this, they partially succeeded. This was counterbalanced by the
strategy of the communists to turn the trial into a political one. The trial received wide public attention within the
country and outside, as a result of which most of the sentences had to be drastically truncated. For an in-depth
study of the Meerut trial, especially its historical significance in the development of the Left wing in India, see
Ghosh, Pramita. 1978. Meerut Conspiracy Case and the Left Wing in India. Calcutta: Papyrus. For a study of the
British accused in the trial see Jones, Jean and Ben Bradley. 1992. ‘Fighter for India’s Freedom’, Occasional Paper
Pamphlet No. 1, Socialist History Society, London.
30. Griffiths, Percival. 1985. Vignettes of India, p. 54. London: Privately Published.
31. The revolutionary terrorists were transported to the Andamans as the government was determined to isolate
terrorists and sever their connections with their supporters. The transportation also had a strong deterrent value. See
File No. 27/32, H(J), NAI. For details see Bengal Administrative Report, 1932–33, p. 23, and Bengal Administrative
Report, 1933–34, p. 19.
32. Chatterjee, Partha. 1986. Nationalist Thought and the Colonial World: A Derivative Discourse?, p. 51. London:
Zed Books.
33. I owe this periodisation to D.N. 1988. ‘Political Economy of the Nehru Era’, Economic and Political Weekly, Special
Number, November 1988, p. 2459.
34. Chatterjee, Partha. 1986. Nationalist Thought and the Colonial World: A Derivative Discourse?, p. 51. London:
Zed Books.
35. ‘Importance of Right Means’, Jawaharlal Nehru’s speech made on 14 March 1948 at a public meeting at
Vishakhapatnam, expressing his discontent with the Telangana method of confronting the violence of the Hyderabad
state. Nehru, Jawaharlal. 1987. Selected Works, Second Series, Vol. 5. New Delhi: Jawaharlal Nehru Memorial Fund.
254
Ujjwal Kumar Singh
36. Ibid., p. 278.
37. In a press conference on 5 August 1949, Nehru justified the ‘big round up’ of communists before the Communist
Party was actually banned in West Bengal for having threatened a railway strike despite the Railwaymen’s Federation’s
decision not to go on a general strike and for preaching sabotage. See Poplai, S.L. (ed.) 1959. Select Documents on
Asian Affairs: India 1947–50, Vol. 1, pp. 565–66. Bombay: Oxford University Press.
38. The essential form of the two main codes of law—the Code of Criminal Procedure of 1898 (amended in 1978) and
the Indian Penal Code of 1860—drawn up during colonial rule, continue to operate in independent India. Other
examples are the Official Secrets Act of 1923 (an amendment in 1967 enhanced most of the offences punishable
under the Act with greater sentences of imprisonment) and the Dramatic Performances Act of 1876, which continued in independent India to suppress dissent. For a comprehensive study see Sumanta Banerjee, ‘Colonial
Laws—Continuity and Innovations’ in Desai, A.R. (ed.). 1991. Expanding Governmental Lawlessness and Organized
Struggles, pp. 226–35. Bombay: Popular Prakashan.
39. See Bhagwat, Niloufer. 1978. ‘Institutionalising Detention Without Trial’, Economic and Political Weekly, 18 March
1978, 13(11).
40. The Supreme Court in the case of Mohan Choudhary vs Chief Commissioner, Tripura upheld the validity of the
Rules, despite the contention that they should be ultra vires because they were issued prior to the Defence of India
Act, 1962.
41. Section 3(1), Defence of India Act, 1962. Section 30(I)(b) dealt with preventive detention. The Act and the
rules were modelled on the lines of the ‘Defence of India Act, 1935’.
42. Amnesty International. 1974. Short Report on Detention Conditions in West Bengal Jails. London: Amnesty
International.
43. According to official statistics, in West Bengal alone in March 1973, the number of Naxalite prisoners was 17,787.
Reports of non-governmental organisations like Amnesty International put the figure at much higher, between
15,000 and 20,000. Most prisoners detained under the DIR were kept under conditions which did not comply
with the ‘United Nations Standard Minimum Rules for the Treatment of Prisoners’. For details see Amnesty International. 1978. Report of an Amnesty International Mission to India, 1 December 1977–18 January 1978. London:
Amnesty International.
44. The changes brought about by the Defence of India Act made the existing provisions of MISA regarding reference
to the Advisory Board and the maximum period of detention much harsher.
45. On 29 April 1976, the Supreme Court, in a group of nine cases headed by the Additional District Magistrate,
Jabalpur vs Shekhavat Shukla upheld the validity of the MISA as amended. The AIR Manual, 1979 (fourth ed.)
SC 1207.
46. The Bill introduced by the Janata Dal government in Parliament on 24 December 1977 sought to make detention
without trial an integral part of the ordinary law of the land by adding a 19-clause chapter in the Code of
Criminal Procedure itself.
47. The expression is borrowed from the title of: Gross, Oren. 2001. ‘Cutting Down Trees: Law-Making Under the
Shadow of Great Calamities’ in Ronald J. Daniels, Patrick Macklem and Kent Roach (eds), The Security of Freedom:
Essays on Canada’s Anti-Terrorism Bill. Toronto: University of Toronto Press. Gross has in turn borrowed it from: Bolt,
Robert. 1996. A Man for All Seasons, London: Vintage International. The expression basically refers to a scenario
where in the rush to deny the Devil the benefit of law, the laws which [like trees] are ‘planted thick from coast to
coast’, are felled down. See Gross in Daniel et al. 2001, p. 39.
48. ‘Report of fact-finding committee appointed by People’s Union for Civil Liberties and Democratic Rights (Delhi),
on ‘‘disturbed areas’’, Jagityala and Sirsilla Taluks (Karimnagar District) Andhra Pradesh’, 30 November 1978,
p. 2, PUCL&DR, Delhi.
49. Ibid.
50. Writ petition No. 1833 of 1984 (decided on 11 March 1994)—SCC 569, 1994, pp. 569–791.
Penal Strategies and Political Resistance in Colonial and Independent India
255
51. While the majority of people arrested under TADA in Delhi were ordinary criminals and members of dacoit
gangs, a number of persons suspected of involvement with Khalistani groups, Kashmiri insurgent groups, political
leaders belonging to the Akali Dal groups and a case of a Naga ‘extremist’ were also arrested. Ibid., pp. 36–37.
52. In Uttar Pradesh, the Act was used against Sikhs in the Terai region.
53. By May 1993, Gujarat came to have the largest number of TADA prisoners in the country at 17,546, with Punjab
following at 14,457. While the reason for TADA’s use in the state was ostensibly on account of ‘security problems
in the sensitive Kutch border district’, TADA in Gujarat was primarily associated with communal violence, which
provided the immediate context. Over time, the Act also acquired a communal image because of its use in communal riots, especially against Muslims. People’s Union of Democratic Rights. 1993. Lawless Roads: A Report on
TADA, 1985–1993, pp. 37–40. Delhi: PUDR.
54. The Act was first used in Rajasthan in November 1989 in the Kota riots. By March 1990, with the Bharatiya Janata
Party having formed the government, the use of the Act against Muslims came to be widely reported. PUDR’s
investigations regarding arrests in the period November 1989–90 in specific police stations in Jaipur, Kota and
Jhalwara showed that all the 84 arrested under TADA in this period were Muslims (Lawless Roads, 1993, op. cit.,
pp. 45–46). More recent reports from the state describe the protests of the TADA Relief Committee against the
‘unjust’ imposition of TADA on those arrested during communal riots. The Committee claimed that all those
arrested under TADA during the communal violence from 1989 to 1992 were from the Muslim community and
that their trial under the law continued even after TADA’s repeal in 1997. The police had slapped TADA cases
on these persons on the vague grounds of recovery of knives or fighting rioting mobs in self-defence. Some of the
accused, even after having been released on bail after incarceration for two years, still have to present themselves in
the Designated Court in Ajmer during every hearing. Among the accused who presented themselves at the meeting
of the TADA Relief Committee included 76-year-old Mohammed Hafeez who could barely walk, 65-year-old
labourer Babu Khan and 60-year-old Mohammed Hanif, who felt that justice was not in sight even after a prolonged legal struggle of 11 years. ‘TADA cases: no end in sight for accused’, The Hindu, 10 January 2001. Another
report claims that the Congress (I)-led government in Rajasthan, under pressure from the Muslim community,
withdrew on 10 January 2001 all the cases registered under the ‘defunct’ TADA against 41 people in Jaipur, Kota
and Bikaner districts. The majority of these cases pertained to communal violence in the state in 1989 and the
early 1990s. The Rajasthan TADA Relief Committee had demanded the release of 13 Muslim detenus in Jaipur,
threatening to launch a statewide protest if the government failed to meet its demand. ‘Rajasthan withdraws
TADA cases’, The Hindu, 11 January 2001.
55. Five years after TADA lapsed, Digvijay Singh’s Congress government in Madhya Pradesh brought in the Madhya
Pradesh Special Areas Security Bill, 2000, designed on the lines of a law in Andhra Pradesh, and justified it as a step
taken to ‘curb Naxalism’ that was spilling over the borders of Andhra Pradesh and Maharashtra into Madhya Pradesh.
Activist groups—including the Kisan Adivasi Sangathan from Hoshangabad, the Shramik Adivasi Sangathan
from Betul, the Narmada Bachao Andolan from Badwani, the Ekta Parishad from Bhopal and the Khedyut
Mazdoor Chetna Sangathan from Jhabua—in an appeal to the National Human Rights Commission, expressed
serious apprehensions that the general terms of the Bill could result in its use against any opposition to government policies. In particular, the groups were concerned that the new law could be used primarily in Betul and
Hoshangabad, where several groups had been organising Adivasis and displaced communities. In the Adivasidominated forest areas of Betul, a long resistance has been waged over several years to the World Bank-funded
Madhya Pradesh Forestry Project, which has prevented poor tribals from cultivating what are known as ‘newad’ or
untitled lands. ‘Draconian Shades’, The Hindu, January 21 2001.
56. In Andhra Pradesh, among the first southern states to be notified as ‘disturbed’ in 1985, TADA was used extensively
against the Marxist–Leninist movement, especially in the tribal areas of the Telangana region and the Agency areas
of Vishakhapatnam and East Godavari forests. While the more dramatic forms of Naxalite violence occurred in
the plains and the urban areas, it was the tribals who constituted the single largest category of TADA detenus in
256
57.
58.
59.
60.
61.
62.
63.
64.
65.
Ujjwal Kumar Singh
the state. From 1985 to 1989, for instance, 5,415 persons were charged under the Act: nearly 50 per cent of them
were from Adilabad and the rest from the tribal areas of Karimnagar, Warangal, Khammam, Vishakhaptnam and
East Godavari. During the drought in 1990, TADA was used extensively against agitating tribals in Adilabad. In
Warangal, in December 1990, about 5,000 people gheraoed the police station at Nermeta demanding the release
of a Naxalite leader detained illegally. Police opened fire, killing two persons. Following this incident, three TADA
cases were launched in which 658 people were charged. Till the end of August 1991, 224 cases were launched
in Warangal in which 1,542 people were charged. See Lawless Roads, pp. 32–33. For details of the invocation of
TADA in the Vidarbha region, see Vajpayee, Punya Prasun. 1995. ‘TADA’: Vidarbha Mein. New Delhi.
Ibid., p. 35.
People’s Union for Democratic Rights. 2003. Terror by Proxy. Delhi: PUDR.
See ‘Testimony by Balagopal’ in Verma, Preeti (ed.). 2004. The Terror of POTA and other Security Legislation: A
Report of the People’s Tribunal on the Prevention of Terrorism Act and other Security Legislation, pp. 66–67. New Delhi:
Human Rights Law Network.
Ghate, Prabhu. 2002. ‘Kashmir: The Dirty War’, Economic and Political Weekly, 26 January 2002, 37(4): 313–22.
Nazir Ahmed Ronga, a human rights activist and President of the Jammu and Kashmir Bar Association is reported
in the article as having said that many persons he got released under PSA were later rearrested and killed in custody.
For this reason, he very often, did not seek the actual physical release of the detenu. See Ghate 2002: 313–22.
The Committee on Reforms of the Criminal Justice System, commonly known as the Malimath Committee
after its chairperson Justice V.S. Malimath, was constituted in November 2000 to identify areas for reform in the
Criminal Justice System. It started working in January 2001 and submitted its report on 21 April 2003, with 158
recommendations for changes in the Code of Criminal Procedure (CrPC), 1973, the Indian Evidence Act, 1872,
and the Indian Penal Code (IPC), 1860.
On 11 July 2004, Thanjam Manorama, a 32-year-old woman, was picked up from her home in Imphal at night
by the soldiers of the Assam Rifles, tortured and raped, and her corpse was left at the highway. Manorama’s was the
19th death that year and would have gone unnoticed if four days after her death the Meira Paibis had not gathered
in a unique and courageous protest—naked and daring the army to rape them—in front of the Kangal Fort, the
headquarters of the Assam Rifles. See for details of the AFSPA in Manipur, ‘Why the AFSPA must go’, a factfinding report by the Committee for the Repeal of the Armed Forces Special Powers Act (February 2005).
Where ‘peacekeepers’ have Declared War, A Report on Violation of Democratic Rights by Security Forces and the Impact
of Armed Forces (Special Powers) Act on Civilian Life in the Seven States of the North East, February 2005, p. 3.
Following Hillyard (Hillyard, Paddy. 1993. Suspect Community: People’s Experience of Terrorism Acts in Britain,
p. 263. London: Pluto Press), the ‘violence of jurisprudence’ approach to the study of law identifies with a perspective that does not see law as an antithesis to abuse of power and violence. It rather examines ‘the awesome,
physical force that law deploys’ and the ‘effects of legal force’ unraveling in the process the legitimising discourses
of ‘national security’ and ‘democracy’ that shroud it, to show the ways in which law becomes an integral part of
the organisation of state violence.
10
Communities, Gender and the Border:
A Legal Narrative on India’s North East
Paula Banerjee
In the early hours of 11 July 2004, a young woman named Thangjam Manorama was allegedly
raped, tortured and murdered by members of the Assam Rifles, who had arrested her a few hours
prior. Protests against this heinous act took the character of a mass uprising, of which the Meira
Peibies (literally, women torchbearers) were in the forefront. In an effort to justify their act, the
Assam Rifles called Manorama an activist of the banned People’s Liberation Army and said that
she was killed when she was trying to flee from custody. The Meira Peibies and other civil liberties
organisations remained undeterred. They claimed it to be merely the most recent state action
against women in North East India, a border region where women have faced multiple injustices
from the colonial period onwards.
The activists also claimed that the brunt of injustices came after the passage in 1958 of the
Armed Forces (Special Powers) Act (AFSPA) in North East India. While this Act passed through the
legislature through a Constitutional process, its purport makes it the vehicle for some of the most
gruesome human rights abuses in North East India. This study hopes to portray how border laws
impacted on the creation of hostile communities in North East India. I further hope to show the
plight of women living in North East India, and how such laws by a hostile majoritarian state—
laws which mark their entire community as criminals/terrorists—impact their lives.
In this chapter, I seek to analyse both border laws and discourses on them, and portray how
these laws marked specific groups as recalcitrant, treating them as criminals and justifying any
violence against them as an act of order. I will analyse border laws from the colonial period to the
present, particularly because there is a definite linkage between the laws of the colonial period
and those of the present, at least vis-à-vis the border areas: the laws mark groups as disorderly and
then justify violence against those considered deviant in state discourses.
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But this is just part of what I intend to do. The other part deals with the gender dimensions of
these laws. The impact of border laws on people in North East India is often considered from a
male perspective. There is very little realisation that these laws have a different impact on women.
The women of these communities are often portrayed by the coercive machinery of the State as
not merely deviant, but their sexuality itself is considered threatening, rendering the impact of
these laws on women even more violent. Rapes of these women are justified as a means of controlling them, which is why rape as an instrument for coercing the women of these regions has
become commonplace.
It is, therefore, not surprising that the most vociferous protests against these laws have come
from women, who are in the forefront of many such protest movements today. In this chapter, I
seek to discuss the situation in the state of Manipur, where the Meiteis, the Nagas, the Kukis, the
Peiteis and other tribes live, and analyse how communities are constructed as alien, how draconian
laws are then created to control the aliens, how women are impacted by such constructions and
how women negotiate for their lives and their communities within such spaces of extreme
violence.
BIRTH OF A PROBLEM: ‘ALIENS’ IN MANIPUR
It was with the acquisition of the Diwani of Bengal in 1765 that the East India Company came
into direct contact with the northeastern regions of Cachar, Jaintia and Assam, its adjoining hills
and the indigenous people who inhabited those hills. But this contact was largely in name. Only
after the Treaty of Yandaboo in 1826 did the British gain direct control over the territories of
Assam and Manipur. Between 1826 and 1889, the British gained control over the surrounding
areas such as the North Cachar Hills, the Naga Hills, the Garo Hills and the Lushai Hills. The
British consolidated their control over Manipur after the Anglo-Manipur war of 1891. Although
the British could have annexed the entire region, monarchy was retained as an act of mercy. But
this war resulted in the transference of all powers to the British government. Then began a period
of direct administration by the British. From the beginning, the British marked the people of
this region as less than civilised so that control over these people could be justified.
The British began administering the area through a series of Acts such as the Schedules
District Act of 1874 and the Frontier Tracts Regulations of 1880. In 1873, the British passed the
Inner Line Regulation. According to one analyst, the logic behind this regulation was that the
‘unrestricted movements which existed between the British subjects in Assam and the wild tribes
living across the frontiers frequently led to quarrels and sometimes to serious disturbances’.1
The British administration also wanted to control the rubber trade which was still in the hands
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of the hill people and which caused frequent skirmishes between the different groups of people
involved in the trade. The Inner Line Regulation was a means to separate the civilised plains people
and the wild hill people. The Inner Line did not in any way give the sovereignty to the hill people;
rather, it was a means by which administrative zones of the hills and the plains were separated,
ostensibly because the civilised people faced problems cohabiting with the wild people.
In fact, even after the inner lines regulations, the British Political Agent opened a cart road
between Manipur and Kohima ostensibly to improve trade. In reality, however, it was meant to
facilitate control over the two areas. The British kept close watch over the region. There were
multiple reports of internecine conflicts. One such report stated that:
…the Tangkhul Nagas from the west, and the Kookies, partly subject to the Rajah, or Tsauba,
of Sumjok, a tributary Chief of Burma, and partly belonging to tribes dwelling on Manipur
territory, from the south, had been gradually pushing up into this formerly unoccupied tract;
and the doubtfulness of the mathematical line, with the standing hostilities of Kookies to Nagas,
had led to several outrages, to the series of which the attack on the Kongal Thana, a Manipuri
military post at the head of the Kubo Valley, in December 1877, and that on the village of
Chingsao in February 1880, belong. This series was continued during the year 1880–81.2
By this time, the British had identified these tribes as warmongering, thereby justifying the
need to control them by violent means, if necessary. Writing around the turn of the 19th to the
20th century, B.C. Allen, the Gazetteer of Manipur, revealed British attitude towards the people of
this region. While compiling the history of Manipur, he wrote, ‘This was but the beginning of the
dreary tale of treason, rebellion, and intrigue which makes up the modern history of Manipur’.3
He also wrote primarily about how violent and treacherous the Manipuris were. He described
how they killed their own fathers and brothers out of greed. He described them as ‘cruel and
treacherous people’.4 There were other means of emphasising the alienness of the Manipuris.
Writing about the standard of education, Allen said that learning,
…it need hardly be said, received little encouragement in the days of the native rule. In 1869,
Brown reported that there were no schools or any wish for them on the part of the authorities.
Offers of assistance in the formation of a school were declined by the Manipuris, who stated
that they preferred to remain ignorant.5
About women, Allen noted that while they were never imprisoned, the form of punishment
inflicted on the women ‘was, however, much more opposed to the idea of decency prevailing in
the West’.6 The woman was supposedly stripped, her breast painted red and a sweeper’s brush tied
between her legs. In this condition, she was made to walk around the market. Reprehensible though
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such a punishment might be, it was never contextualised in the colonial discourse: it was hardly
ever mentioned that this extreme form of punishment was seldom meted out, and that the market
place was also part of the women’s domain. Nor was it adequately mentioned how respected the
women were in their communities. This shows how the tribal people of Manipur were reviled in
the British discourse.
The Government of India Bill of 1935 classified the hill areas of Assam and Manipur into excluded and partially excluded areas. This was done mainly to exclude the hill areas of the North East
from the jurisdiction of the Reformed Provincial Government, which included the plain lands of
the Brahmaputra and the Barak Valleys. This policy resulted in the separate political evolution of
the hill and the plains lands. The excluded areas were not demarcated to protect regional autonomy,
but to keep recalcitrant groups at bay. It also meant that the hill areas remained excluded from all
Constitutional experiments that were embarked upon within the jurisdiction of British India.
Although part of Manipur remained outside the pale of such administrative decisions as it was
still ruled by an indigenous king, it did not mean that British control in this area was any less
offensive.
That the Manipuris did not take kindly to these measures is apparent from the number of
agitations staged against British rule. These included the 1904 ‘First Women Agitation’, where
women such as Irengbam Ongbi Sanajaobi Devi, Lamabam Leikai, Laishram Ningol Joboti Devi
and many others agitated against oppression. This was followed by the 1913 movement for the
abolition of the Pothang system, the Kuki rebellion between 1917 and 1919, the Zeliangrong
Movement of 1930–32, and the Nupi Lan movement of 1939.7 While most of these movements
were against British oppression, the Manipuris also protested against local speculators such as the
Marwaris. This occurred particularly when women led the movements, because they questioned
all forms of oppression through their agitations.
Then came the years when extraordinary Acts were instituted in order to maintain social
order. This set the precedent that if the Executive so desired, it could mark an area as disturbed and
invoke extraordinary measures of oppression in the process of governance. The Indians were quick
to take this lesson from the British. These years started in 1939 with the passage of the Defence
of India Bill, although this was not the first time that such a bill had been passed. What made this
Bill different was that it was passed during the period of the much-hyped provincial autonomy.
This Legislative Assembly was more representative than the previous wartime Legislative Assembly,
although the Congress had boycotted it.
Sir Muhammad Zafrullah Khan, while introducing the Defence of India Bill, clearly stated:
It is not pretended that the provisions of the Bill are not designed to give very wide powers
to the Government but it will be realised that extremely wide powers are absolutely essential
for the successful prosecution of the war and to control disloyal and mischievous tendencies
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which might do serious damage to the ability of India to make its due contribution towards
the prosecution of the war.8
There were numerous objections to the Bill. Maulvi Abdur Rashid Choudhury from the opposition bench moved the House to send the Bill to a select committee. He argued that war had
been announced without any consultation with the House, and hence the members had the
right to deliberate over the merits of the Bill. The European members from the government side
vociferously supported the passage of the Bill without any reference to the select committee. But
A. Aikman said that in ‘her fight for liberty and against aggression Britain has become overnight
almost a totalitarian nation with the willing and almost eager assent of her people’.9 This was to be
a prophetic statement in the context of India, henceforth the Indian leaders while passing draconian
measures will do so ostensibly through a democratic process appropriating the same argument.
P.N. Banerjea, with other opposition members such as Sardar Sant Singh, criticised the government for the enormous powers that it was vesting in itself, particularly because such powers
would allow it to supersede the jurisdiction of ordinary civil courts and to create new offences.
Banerjea complained:
Indeed, the provisions of the Bill are of a very drastic character. In this county, even at the
present moment, civil liberties are on a very low level, and it is sought to make serious inroad
on these civil liberties…. From our experience we know that when wide powers are vested in
the executive and proper safeguards are not provided against an abuse of these powers, it often
happens that the executive misuse these powers.10
Many who criticised the Defence of India Act 1939 did so on the grounds that it was much
more severe than the Act of 1915, which had been widely used to put down the Swadeshi movement. This later Act might also be used for the same purpose. Yet, the Act was passed within the
month without a major amendment. Since some great battles were fought in Manipur during
the Second World War, it became a place that witnessed the full extent of the coercive power of
the 1939 Act.
The Defence of India Act brutally portrayed that those who rule should have the power to
access extraordinary measures to maintain their rule. This was a great lesson for those Indians who
appropriated this power for themselves from the moment of the birth of the nation. During the
Constituent Assembly debates, the new Indian postcolonial state legitimised this extraordinary
state power by making it part of the Indian Constitution. These extraordinary powers were legitimised by demonising certain groups of people such as the Nagas and the Meiteis, and clearly
making the connection that emergency powers were required to maintain social order over such
groups. Therefore, both the Sixth Schedule and Emergency Powers were discussed around the
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same time. The debate on the provisions of the Sixth Schedule revealed such a mentality, particularly
among members of the dominant groups. When there were discussions of giving the Naga Hills,
part of which lay within the state of Manipur, an autonomous council, some of the responses of the
members of the Constituent Assembly reflected the attitude of the architects of the Constitution
towards these people. Kuladhar Chaliha from Assam was particularly vocal. He said:
The Nagas are a very primitive and simple people and they have not forgotten their old ways
of doing summary justice when they have a grievance against anyone. If you allow them to rule
us or run the administration it will be a negation of justice or administration and it will be
something like anarchy.…11
Although not as vociferous as Chaliha, there were many more who made it obvious that the
Nagas and the other tribes of the North East did not belong in the Constitutional mainstream.
During the same debate, Brajeshwar Prasad from Bihar stated that ‘responsibilities of parliamentary
life can be shouldered by those who are competent, wise, just and literate. To vest wide political
powers into the hands of the tribals is the surest method of inviting chaos, anarchy and disorder
throughout the length and breadth of this country.’12 Even Gopinath Bordoloi, who drafted the
Sixth Schedule, commented that hardly any of the tribes could be called self-governing but ‘the
time may come when they may become fit to govern themselves’.13
While the Sixth Schedule was being debated, the extraordinary powers of the Executive were
also being discussed. The Constituent Assembly was in favour of granting the State the authority
to proclaim an emergency whenever it was threatened by war, external aggression or internal
disturbance. But it was interesting that nowhere was the term ‘internal disturbance’ precisely
defined.14 In this way, the emergency provisions came to be sanctified within the Constitution,
much against the wishes of a few Assembly members who felt that this would corrode the fundamental rights and provincial autonomies. H.V. Kamath clearly stated:
I have ransacked most of the constitutions of democratic countries of the world—monarchic or
republican—and I find no parallel to this Chapter of emergency provisions in any of the other
constitutions of democratic countries in the world. The closest approximation, to my mind, is
reached in the Weimar Constitution of the Third Reich which was destroyed by Hitler taking
advantage of the very same provisions contained in that constitution.15
Even Govind Ballabh Pant and H.N. Kunzru, who favoured a strong centralised government,
had originally filed amendments to remove this part from the Constitution. But in the majority
were others such as B.H. Zaidi, who felt that ‘it may be a very dangerous thing for our country
to be too democratic’.16 Also, as Paul R. Brass commented, even the most vigorous critique of
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emergency provisions in the Constituent Assembly that was enshrined in Article 355 looked
favourably towards the principle of a strong Centre. Some members, in fact, made it clear that
if the Centre lacked the right to interfere in the governance of the State, then there would be a
tendency towards violence and revolt.17 Here, we are faced with the interesting situation that the
Indian Constitution, while giving extensive rights to the people, also made provisions to Constitutionally abrogate those very same rights.
Discussions on Emergency Powers and the Sixth Schedule were a precursor of things to come.
The members of Constituent Assembly who were deliberating on the creation of a democratic
Constitution for India were not merely obsessed with the idea of maintaining order, as Brass
suggested: that was just one of the things that they were concerned with. They were also in the
business of constructing a citizenship that would be loyal to the order that they were seeking
to maintain. On the basis of such criteria, they constructed both notions and discourse of who
belonged and who did not. They created a hierarchy of citizenship in which many northeastern
tribal groups occupied the bottom rung. The avowed difference of these groups was considered
deviance: so, they were, at best, patronised and, at worst, vilified. At the back of everyone’s mind,
especially, that of the members of the Legislative Assembly, was the fact that since these people
were not ‘us’, they were unworthy of autonomy or self-rule. Even as early as in the Constituent
Assembly, the nation’s leaders were using the language of their colonisers to deal with all those
they considered as ‘other’/‘deviant’. This was decisive in shaping the State’s attitude towards the
region. An analysis of later laws such as the AFSPA, the National Security Act and so on will
also portray how groups were marked recalcitrant by evolving border laws and were then treated
as criminals.
DEFIANT MANIPUR
By the end of the Second World War, it was evident to everyone in Manipur that the British rule was
coming to an end. Feeling that at last he would be able to rule, Maharaja Budhachandra passed
the Manipur State Constitution Making Act of 1947. He did not want a completely responsible
government but merely a beginning of the process of governance. In his inaugural address to the
Constitution Making Committee, he asserted that the basic objective of the proposed constitution
was to make a bridge between the past and the present in order to create a peaceful future.18
But Manipur did not get much peace for long. When the Constitution-makers called for the
establishment of a responsible government, the King was, predictably, not prepared to concede.
Before the King could decide on his course of action, however, he found himself powerless
before the might of the Indian state. He had signed the ‘Stand Still Agreement’, on 11 August 1947,
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four days before India’s independence. This meant that on independence, the Indian government would take up responsibility for defence, coinage, external affairs and communications. So,
from the beginning, the King’s jurisdiction was limited.
Nonetheless, even in these unsettled conditions, the people of Manipur strove for a responsible
government, although the King still dithered when the Chief Minister of Manipur announced the
establishment of a responsible government. Before Maharaja Budhachandra could make up his
mind, something else happened that totally changed the situation. While discussion procedures
of the election and the Franchise Sub-committee was on the Manipur merger to the Indian state
took place.
Maharaja Budhachandra left for Shillong on 15 September 1949. Governor Sri Prakash met
him and informed him that the Government of India expected him to merge his state with India.
It has to be understood that by 1949 the people in Manipur had received partial self-rule and
therefore had a stake in the decision taken by the Maharaja. It is said that while pressuring the
Maharaja, the Indian government cut off all channels of communication between him and his
state. On 21 September, the Maharaja signed the merger, which was officially announced on 15
October, bringing to an end the sovereignty of the state of Manipur. It was now a province of
India. But the way the merger was carried out rankled with the people. Many Manipuris saw it as
the ‘illegal and illegitimate annexation’ of Manipur by the Indian State after the Maharaja signed
the ‘controversial merger agreement with the Dominion of India, under duress’.19 The popular
assembly was dissolved when protests proved unmanageable. Manipur came under the direct,
often repressive, rule of the Government of India.
After the merger, the region was rife with rumour that Manipur would be clubbed either with
Assam or with Bengal. The people of Manipur did not want this but a fully responsible state. In
a memorandum submitted to the Prime Minister, the Manipur National Union called for selfrule within 15 days, failing which it would declare independence. The group was perceived of as
a threat; its political leaders were soon arrested, leading to the early demise of a group that was
making only political claims. The Government of India established an ‘Advisory Council’ for
the administration of Manipur which would be appointed by the President to assist the Chief
Commissioner. This was a blow to the Manipuri people’s aspiration for a direct and responsible government.
The Meitei-led Socialist Party of Manipur took up the mantle of such a demand, threatening
to call statewide strikes. Various tribal organisations such as the Tangkhullong, the Paite Union,
the Zeliangrong Union and the Kuki National Assembly joined hands with the Socialist Party.
Market women also participated in the movement, and at their call all market activities in both
the urban and the rural areas in the state were halted. (It has to be clearly pointed out that it
had as yet not become an irredentist movement.)
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Meanwhile, the State Reorganising Committee came to visit Manipur. In its report, it stated
that Manipur might currently be Centrally-administered but its ultimate merger with Assam
should be kept in view.20 This enraged a majority of Manipuris and there were agitations all over.
On 17 December 1954, police opened fire on agitators, injuring three people and arresting more
than 150. On 22 December 1954, Rishang Keishing, Member of Parliament from Manipur, was
arrested. Within the next few days, the police arrested all the notable leaders of Manipur under
the Preventive Detention Act. An undeclared state of emergency continued, with the Government of India coming down heavily on all protests. Ukhrul, Senapati and the other Naga Hills
were already up in arms, and the Meitei areas followed suit.
The Praja Socialist Party also took up the cause of Manipur. Its leader, Ashok Mehta, asked the
Government of India to give in to the rightful claims of the Manipuris. In 1956, the Territorial
Council Act was passed, but the Council itself enjoyed no power and clearly disappointed the
people of the state. For the next two years, events in the Naga areas took centre-stage. The Nagas
were fighting the Government of India for a state of their own. The fight proved extremely
bloody, with the Indian State trying to clamp down on the movement through even more violence.
To legitimise its violence, the government passed the Armed Forces Special Power Ordinance in
1958. On 22 May 1958, only 12 days after the Budget Session of Parliament ended, the Armed
Forces (Assam–Manipur) Special Powers Ordinance was passed. This Ordinance initially operated
in both the Naga Hills and in Manipur because by 1958 parts of Manipur had turned into a
cauldron of conflict. Thus, peaceful protests slowly moved into the orbit of violence that was
nurtured by the passage of the AFSPA.
The AFSPA was a take off, with certain modifications, from the Armed Forces (Special Powers)
Ordinance 1942, the major difference being that it is much harsher than the Ordinance. In the
Ordinance, the power to take action was vested with an officer of the rank of Captain, but
the AFSPA handed the same power to lower-ranked non-commissioned officers. Also, unlike
the AFSPA, which was meant only for the Naga Hills and parts of Manipur, the Ordinance had
been meant for all of India. Like the Ordinance, however, the AFSPA is designed to suppress
civil society, curb dissent, and legitimise state violence. As one observer has maintained, ‘logic demanded that an India that fought against such [colonial] powers would, when independent, get
rid of such legislation. Events, however, have proved the contrary’.21
To contain these situations in the North East, the Armed Forces Special Powers Bill was
introduced in the Monsoon Session of Parliament in 1958. G.B. Pant, the then Home Minister,
introduced the Bill, stating that it was intended to quell ‘arson, murder, loot, dacoity etc. by certain misguided sections of the Nagas’. It was because of such violent actions of the Nagas that
‘it has become necessary to adopt effective measures for the protection of the people in those
areas’. So, paradoxically, it was in the name of the people that this Bill was introduced, giving the
Armed Forces almost unlimited power over the life and death of these people.
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There were some Members of Parliament (MPs) who cautioned against giving such blanket
powers to the army, but their voices were generally disregarded. The Deputy Speaker of the Lok
Sabha criticised the government, saying that:
…it pains me that we have an occasion in this House to give our assent to martial law which
was forced on us by an Ordinance…. Why have they (the Congress Government) smuggled
this legislation in this way? It is really a challenge to the concept of democracy and freedom
that we have.22
Some other critics felt that ‘Parliament is giving its seal of approval to a legal monstrosity to
quell another kind of monstrosity’.23 Even the Speaker asked the Home Minister:
Does the Honourable Minister feel that this is the procedure, he can shoot if it is a disturbed
area, that is the procedure established by law? He can shoot. Anybody can be killed or shot at,
but is this procedure established by law, does it go to that extent? Article 21 says that no person
can be deprived of his life. Here any person can be deprived of life by any commissioned
officer, he can shoot.24 [Emphasis added]
When the Bill was being debated both MPs from Manipur vehemently objected to it. Laishram
Achaw Singh, MP from the Inner Manipur Parliamentary Constituency, argued:
In my humble opinion, this measure is unnecessary and also unwarranted. This Bill is sure to
bring about complications and difficulties in those areas, especially those which are going to be
declared as disturbed areas. I fail to understand why the military authorities are to be invested
with special powers. I have found that these military authorities have always committed excesses
in many cases, especially in the sub-divisions of Kohima and Mokokchung. In such a situation,
I do not like that the officers should be invested with special powers…. This piece of legislation
is an anti-democratic measure and also a reactionary one. Instead of helping to keep the law
and order position in these areas, if they declare some areas as disturbed areas, it would cause
more repression, more misunderstanding and more of unnecessary persecutions in the tribal
areas. This is a black law. This is also an act of provocation on the part of the Government.
How can we imagine that these military officers should be allowed to shoot to kill and without
warrant, arrest and search. This is a lawless law.25
Even after such ringing protest from MPs of the region, AFSPA of 1958 was enacted after a
mere three hours of debate in the Lok Sabha and four hours of debate in the Rajya Sabha. The Act
was meant to be in the statute books for only one year but it remains operative even today.
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The AFSPA of 1958 gave the state government the power to define any area as disturbed. The
Home Minister argued, when faced with the criticism that he was wresting power away from the
state governments, that he was actually increasing the powers of the states since, by this Act, they
had the power to summon the military whenever they wanted to do so. That this was hardly the
case would become apparent when, in 1972, this provision was changed into giving the state
government the power only to declare any area as disturbed. The AFSPA is a prime example of
how democracy legitimises violence on the people that it considers errant/deviant. The evolving
history of this Act portrays how, by institutionalising violence, the State securitises a certain area,
leading to the securitisation of the whole region, marginalising civil society and criminalising
the people of the region. Such criminalisation polarises society and creates further marginalities.
Those who become marginal, notably minorities and women, are then forced to face the brunt
of the violence.
FROM NEGOTIATIONS TO VIOLENCE
The establishment of the Territorial Assembly was not a satisfactory solution to the demands of
the people of Manipur. The Socialist Party and the Communist Party came together in 1960 to
spearhead an agitation. When Nagaland became a new state, the lesson to the Manipuris was
clearly that violence produces positive results. Soon, the youth and students of Manipur actively
joined the agitations. In 1964, the United National Liberation Front (UNLF) was created to
agitate for the right of self-determination of Manipur. Gradually, its demand changed to an independent Manipur. This was one of the first irredentist groups, but it would take some time and
many more abuses, for such a movement to take root.
The Manipur Congress also joined the fray and started agitating for responsible government in state, but even it could not get any positive result. In fact, none of the political parties
could effectively influence the Government of India. An All Parties Statehood Demand Coordinating Body organised a mammoth rally and, in May 1970, a bandh. Meanwhile, the proarmed struggle leaders of Manipur formed the Consolidation Committee of Manipur, followed by
the Revolutionary Government of Manipur. The agitation gathered momentum with the beginning of a successful civil disobedience movement, leading to a complete collapse of the law and
order situation in the state. In January 1972, Manipur became a full-fledged state within the
Indian Union. The same year, the AFSPA was renewed. In 1976, the Manipur Hill Areas came
under its ambit; in 1980, so did all of Manipur. Today, the AFSPA is effective all over northeastern
India, barring the city of Imphal.
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As a result of the 1972 amendment, the Governor was empowered to mark an area as disturbed
and then invoke the AFSPA. According to one observer, this:
overrides the legitimacy of the State Legislative Assembly, which is to assess the law and order
situation. If that is not all, read Section 6 which states, “No prosecution, suit or other legal
proceedings shall be instituted, except with the previous sanction of the Central government
against any person in respect of anything done or purported to have been done in the exercise
of powers conferred by this Act.” If this clause is not draconian, what else can be?26
The AFSPA was meant to curb attacks against the state but obviously it failed to fulfil its
purpose. In 1977, the People’s Revolutionary Party of Kangleipak (PREPAK) was formed. In 1978,
Bisheswar, who was previously with the UNLF and had experience in armed struggle, created the
People’s Liberation Army (Eastern Region) ostensibly after returning from a training stint in China.
The underground armed struggle of the Meitei’s had begun.27 The Nagas had already gone a long
way down this path. By 1980, the National Socialist Council of Nagaland (NSCN) had been
formed. Following this, many underground parties came and went. Violence inspired more violent
responses. The whole region was caught up in a vicious circle of rebellion and counterinsurgency.
Men, women and children were all part of this violent circle and no one was spared.
The NSA, which was passed in 1980, added further legitimacy to Preventive Detention.
A casual perusal of the All India Reporter of the Gauhati High Court (hereafter AIR GAU) in the
1980s shows how effective the NSA was. There was a plethora of cases of people petitioning the
Court to release them on the grounds that they were being wrongfully detained under the NSA.
In one such typical plea, the petitioners claimed that they should be granted the writ of habeas
corpus because:
…the petitioners were arrested on the subjective satisfaction that the detentions were necessary
for the purposes of public order. The Detaining Authority was misinformed or had exercised
the power mechanically without application of his mind or at least demonstrated elements of
casualness as the grounds of detention do not show any material in support of the said object/
purpose of detention. The Detaining Authority himself bottomed the grounds for detention not
for the purpose of public order but for a completely different purpose namely, ‘law and order’.
Under these circumstances the order of detention must be held to be invalid as mechanical
exercise without application of mind or exercise of power in a casual manner.28
In this case, the plaintiffs were lucky as their petition was granted. But in many other cases,
the victims were left to languish in detention for months without writs of habeas corpus or any
support from the authorities.
Communities, Gender and the Border
269
It is not as if the State was unaware of the enormous powers vested with the armed forces as a
result of the AFSPA. A confidential pamphlet issued in 1969 and published in 1975 was said to
have given a guideline to the army. In 1970, Basic Book instructions were issued by the Government of India to the Armed Forces for use whenever they were called in aid of civil power. It
stated that under Section 100 of the CrPC, members of the Armed Forces could search a person
in the presence of two other persons. It also provided that anything seized must be put in writing;
today, however, such provisions are known more for being violated.
The Assam Police Manual Part V, which contains instructions issued by the InspectorGeneral of Police, Assam, at Gauhati on 27 June 1981, Circular No. 3 addressed to all Superintendents of Police, D.I.G’s Range in Assam were also considered for the determination of the
issue relating to women. In that case, it was held that when women were interrogated or questioned
witness they were not to be summoned to police station.29
It was further held that no women were to be summoned to the Army camp for interrogation.
She could only be interrogated where she resided. The Manual specifically held that ‘a woman is
not to be requisitioned by the Army officials for attendance at any place other than her residence
as provided in Section 160(1) of the CrPC’.30 In 1985, the Court had ruled in Ramnath Das vs
State of Tripura that women were not to be kept in police stations where they stood a chance of
dishonour. In 1983, in the famous case of N. Devi vs Rishang Keisang, it was ruled that army
officers do not have the power investigate or interrogate an arrested person. In reality, however,
such is not the case. Very few people are able to access the courts and members of the Armed
Forces do interrogate civilians. Also, as many cases on Manipur show, women are routinely taken
to the Army camps for interrogation, and many abuses follow.
The courts have habitually condoned offences made by the members of the Armed Forces and
the State and have supported the AFSPA and the Disturbed Area Acts whenever these came up
for review. For example, in Indrajit Baruah vs the State, the courts ruled that both these Acts were
Constitutional. It said:
Placing the provisions of the two Acts, particularly, Section 4 of the Assam Disturbed Areas
Act, 1955, it is submitted that it fully conforms to the provisions of the Constitution. The said
section may be quoted:
Powers to fire upon persons contravening certain Orders—Any Magistrate or Police Officer
not below the rank of Sub-Inspector or Havildar in case of the Armed Branch of the Police
or any officer of the Assam Rifles not below the rank of Havildar, may, if in his opinion, it is
necessary so to do for the maintenance of public order, after giving such warning, if any as he
may consider necessary, fire upon, or otherwise use force even to the causing of death, against
any person who is acting in contravention of any law or order for the time being in force in a
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disturbed area, prohibiting the assembly of five or more persons or the carrying of weapons or
things capable of being used as weapons or fire-arms, ammunition and explosive substances.
The petition further said that Section 4 of the AFSPA, which provides for same kind of
powers and immunities as the Assam Disturbed Areas Act of 1955, was equally constitutional.
The court ruled in favour of these petitions.31
There were some spectacular cases of repression and counterinsurgency in Manipur. This
brings to mind the Oinam massacre and Operation Bluebird32 in 1987, the former of which
was an extremely barbaric instance of human rights abuse. On 9 July 1987, NSCN cadres were
said to have overrun an armoury of the 21 Assam Rifles on the outskirts of Oinam village. The
camp was almost wiped out and nine soldiers were killed. The NSCN cadres left with a lot of
weapons, including rifles, Sten guns and light machineguns. The security forces soon launched an
operation against Oinam village. The Assam Rifles sealed off the area. According to reports from
the members of Watsu Mongdang who visited the area soon after, what followed was a reign of
terror, with villagers being tortured and extrajudicial executions carried out. Women were raped
in front of villagers; even pregnant women were not spared. Eight women reported having been
brutally raped. 14 people were killed and about 300 people were tortured.33 When the Naga
People’s Movement for Human Rights (NPMHR) brought a case against the Governor and the
AFSPA, the Gauhati High Court ruled that ‘Article 361 of the Constitution leaves no room for
doubt about the nature and scope of immunity of the Governor. It gives personal immunity from
legal action to the Heads of the States for their official acts…’.34 Of course, the AFSPA has not
been declared unconstitutional and the abuses continue.
Many Oinam-like incidents followed. On 7 August 1995, the jawans of 21 Rajputana Rifles
attacked villages in the Tamenglong district and tortured more than 100 villagers, 60 of whom
had to be hospitalised. Four women were molested and many more were assaulted. In March
1996, the Assam Rifles killed two persons in Ukhrul and burnt and destroyed 103 houses. On
1 August 1996, a combined team of the Manipur Police and 2nd Battalion Mahar Regiment were
conducting a search operation in the Sports Authority of India Complex in Takyel Khongban in
Imphal. In the process, they entered a nearby house and repeatedly raped Elangbam Ahanjoubi
alias Sanatombi, a 37-year-old woman, in front of her eight-year-old physically challenged son.
The North East Sun covered the incident and wrote that the ‘gangrape of a 37-year-old housewife by Army personnel has triggered a spate of protests and given a credence to the demand for
withdrawal of the Armed Forces Special Powers Act.’35 While these incidents were occurring, the
underground movement was also gathering force.
Bisheswar, the leader of the People’s Liberation Army (PLA), had by this time been assassinated,
many suspecting his former comrades. After him, Bhorot, a former student from Kolkata, tried
to consolidate the anti-Indian forces and bring together a people’s party by integrating all the
Communities, Gender and the Border
271
revolutionary organisations. His first step was the formation of an umbrella organisation called
the Revolutionary Joint Committee. PREPAK joined hands with other underground groups.
Meanwhile, the UNLF accepted the leadership of Sana Yaima, a former Jadavpur University
student. By this time, a new crop of leaders among the underground movement recognised the
social evils that were tearing Manipur apart. They pledged to fight drug abuse, wife-beating,
alcoholism, etc. The North East Sun reported that the ‘social cleansing drive evoked a popular
support. The modus operandi is simple. The undergrounds would nab the anti-social and hand
them to members of local clubs or women bodies for necessary action’.36 In 1999, the UNLF,
the Revolutionary People’s Front and PREPAK joined resources to form the Manipur People’s
Liberation Front (MPLF). The platform stopped collecting taxes from their own people, desisted
from killing unless attacked first, and stopped internecine quarrels.37 However, this new face of
the Manipur underground movement did not appear in national perceptions, and in the national
discourse they remained criminals. While all these incidents were happening, women were
fast recognising that the leadership for change needed to come from their quarters.
IN THE FOREFRONT: MANIPURI WOMEN
The criminalisation of Manipur society in the popular perception has led to a facile generalisation
about Manipuri women being in cahoots with the underground movement. These are the very
grounds on which the Armed Forces in Manipur justify their repression of women. In most of
the North East, women are marginalised in institutional politics. For example, in the 1996 Parliamentary elections in Manipur, while female voters (6,47,422) outnumbered male voters (6,38,438),
of the 28 candidates, only two were women. In the present elections too, none of the women won
the parliamentary seats. Even in Nagaland, women hardly ever figure in electoral politics.
Electoral politics in the North East is, thus, completely dominated by men. They dominate the
seats of power. Sometimes women are given token representations, but very often they become
invisible. According to Aparna Mahanta,38 this exclusion of women from electoral politics is a
‘deliberate exclusion’ imposed on them by men. Thus, electoral politics have in no way empowered
women in the Northeast; rather, it has led to their marginalisation. Also, the facile perception that
Manipuri women associate with the underground armed rebellion has led to further marginalisation. In the process, what is being overlooked is the spectacular success of these women in building
up a mass movement against border laws such as the Disturbed Area Acts and the AFSPA.
That Manipuri women have always been exceptional was apparent to the British from the
early days of their interaction with the people of the state. One of the first things that the British
noticed about Manipur society was what they termed as the lack of a ‘patriarchal instinct’. Manipur
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men seemed lax about controlling their women. In fact, there seemed to be an unusual equality in
the Manipuri society. The British administrators pejoratively commented that, ‘their views with
regard to the relations between sexes are extremely lax. The man has to a great extent divested
himself of the responsibilities of providing for his children, and the question of their exact paternity
is thus no longer a matter of vital interest’.39 In terms of sex ratio, Manipur has long been an
exception. The Gazetteer noted that even though there is a ‘preponderance of the male sex among
the immigrant population’, ‘the women in Manipur exceed the men in numbers’.40
The Gazetteer also noted that the women of these hill tribes enjoyed a special status. Women
in Manipur were said to have fullest liberty. ‘They are not exposed to the risks of infant marriage,
or mewed up within the four walls of their houses, and the comparatively healthy life they lead
is the cause of their longevity.’41 It was recognised that even though the women of most of the hill
tribes may have enjoyed a special status—which fact was also reflected in the positive attitude in
these tribes towards girl children—they had to work very hard in their daily lives. The tremendous
influence of Manipuri women in the public sphere was borne out by the fact that the Raja reprieved
those sentenced to capital for whom ‘sufficient number of women appeared to intercede’.42 Some
of the first anti-British movements in Manipur were organised and led by Manipuri women.
In 1904, the first organised anti-British—a non-violent agitation against British oppression—
movement sprang up with women in the leadership. Immediately on taking charge of Manipur,
the British had ordered the disarming of the whole population. This rankled with the free-spirited
Manipuris. The British officers also punished those who fought against them in the AngloManipur wars. Manipuri men were ordered to work as porters for the British army but were
denied remuneration. Frequently, the British authorities would impose new taxes. Then, when
the bungalows of two British officers were burnt down in Imphal, they held the Manipuris responsible and decided to punish the people. The Manipuris were ordered to rebuild the houses free of
charge. When political activists decided to organise a meeting, they were arrested and banished
from the kingdom.
Shocked by such high-handedness, the women of Manipur in large numbers in Imphal and
protested against the British action. Initially, the British responded with force, but the women
were unperturbed and they continued their agitation. The markets were closed, and normal life in
the state was paralysed. This forced British to withdraw the order to reconstruct buildings with
forced labour of urban Manipuri men. This was a significant victory for the women, and it bolstered
the morale of the protestors.
The next agitation, the Nupi Lan, took place in 1939. The Marwaris, who had migrated to
Manipur for trade, controlled the main market of Khwairamband Bazar and the food prices; and
the British administrators were in cahoots with the Marwaris. Towards the end of the 1920s, the
food prices shot up, for which the exploitative dealings of trading communities were blamed.
The people of Manipur established another market to counter such dealings. In 1938, an
Communities, Gender and the Border
273
unprecedented event occurred—an untimely flood before the rice harvest, subsequent to which
there was acute food shortage. To make matters worse, the traders purchased the entire stock of
rice that was available for export, which led to a further hike in prices. In December that year,
frustrated with the food shortage and the price rice, some 50 or 60 women in Imphal stopped
the traders’ cart taking rice outside the region. Word soon spread, and women all over Manipur
started stopping carts and bringing them to the local villages. A huge gathering of women then
went to the State Durbar Office and demanded that the King ban all export of rice. Since the
King was in Bengal, the women surrounded the British officers and some members of the Durbar,
and did not allow them to leave until the King came to town with his decision. In the ensuing
intervention by an armed British detachment, about 21 women were seriously injured; but the
approximately 1,000 women who had gathered there did not lift the siege.43 The King soon
returned from Bengal and, realising the magnitude of the public outburst, announced a ban on the
export of rice.44 In this round at least, the Nupi women outsmarted the British and forced action
against immigrant traders.
Manipuri women have a much higher literacy rate than the national average of India. Their
rates of participation in the labour force are also higher. One report on the status of Manipuri
women says:
On the other hand, the migration of men to urban areas has left many women alone in rural
areas, having to cope with increased work and home responsibilities. While the problems of
unemployment in Manipur affect both sexes, women are usually more disadvantaged. Women
in Manipur like other parts of the world find themselves difficult to compete with men for
better jobs, which is much more affected among the poorer group. Maximum burden for the
family is loaded to the women; this is clearly witnessed by the existing women’s market which
has 60 per cent of the women in the reproductive age group. This is because 80 per cent to
90 per cent of the educated youths are unemployed and when they are married the females
are at risk at the reproductive age group to earn with small trades to support their family in
addition to their household activities.45
What the abovementioned phenomenon has done is make a niche for women in the public
spaces through their market activities. With a history of organising themselves, the Manipuri
women found it easy to come together for agitations against draconian laws in the state.
On 26 April 1980, around the time when counterinsurgency movements were escalating, the
Central Reserve Police Force (CRPF) shot dead a pregnant woman near Imphal. The next day,
the CRPF killed a woman vendor. To protest against this highhandedness, the women organised
themselves and the Meira Paibi (torchbearers) movement was born. The Meira Paibies, who
have become an institution in their own right, recently spearheaded a protest against the AFSPA
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in Manipur. From the beginning, they were the loudest voice against the escalating violence in
society. A violent society means more violence against women. This violence was reflected in
the increase in crimes against women.
After Elangbam Ahanjoubi’s rape, many more rapes were reported. A pamphlet by the Nupi
Samaj lists them. On 4 April 1998, 30-year-old Ningthoujam Ongbi Pramo Devi was raped
by a member of JK Light Infantry Rifles. The same year witnessed other spectacular rape cases.
Naorem Ongbi Thoinu Devi was raped by a member of the Gurkha Regiment. A member of
the CRPF raped Mercie Kabui in 2000. In 2001, members of the Assam Rifles raped Bina Devi.
The list continues until we come to Manorama.46 Many rape cases are reported every year, while
many more go unreported. According to one report, ‘fear of social stigma attached to the rape is
further aggravated by the general fear of security forces’.47
The Meira Paibies are active against all social evils including rape. They started as nasha bandis,
or combat groups, for the ever-increasing consumption of alcohol by the men. Slowly they captured the imagination of the PLA, which imposed a ban on bootlegging and alcohol in January
1990. Two months later, succumbing to this pressure, the United Legislative Front government
declared Manipur a dry state. The social cleansing drive had evoked popular support, and the
Maira Paibis had cooperated in this effort with the underground. Although, according to some
critics, Meitei militants actively support these women’s groups, the events of 200448 show that not
just the militants but the Meira Paibies enjoy the support of most of the civil society in Manipur.
Their protests have led to Elangbam Ahongjaobi’s rapist being jailed for 10 years of rigorous
imprisonment, and Pramo Devi and Thoinu Devi’s rapists being dismissed from service. Thoinu
Devi’s rapists, in fact, were caught and beaten by the local women. Now, the women campaign
against atrocities by the security forces. They also keep nightlong watches to foil raids. They
hold dialogues with the security forces and convince them not to pick up innocent bystanders
for questioning as part of their counterinsurgency operations. They vociferously support Irom
Sharmila Chanu, who has been on a hunger strike since 2000. Chanu’s demand is that the
AFSPA be repealed.
The Meira Paibies have been campaigning against the AFSPA for a long time. After Laishram
Bijay Kumar was arrested on 4 June 1996, the Maira Paibis staged a huge dharna. In a memorandum
to the chairman of the NHRC, they wrote:
Three judicial enquiries have held the CRPF, Assam Rifles and the police guilty of misutilisation
of power resulting in the deaths of many innocent people. It is our earnest appeal to you that
steps may be taken up so that the AFSPA which is the root cause of all these be repealed at the
earliest and a political solution to the problems of Manipur be found.49
From 2004, particularly after Manorama’s death, the Meira Paibies have expanded their area
of action. Assam Rifles tried to dismiss Manorama’s death as the killing of a terrorist. They called
Communities, Gender and the Border
275
her a member of the PLA and a ‘baby-faced murderer’, thereby trying to exonerate themselves
from their totally illegal action, that of killing a person in army custody. Assam Rifles said they
had killed Manorama when she was trying to flee from custody, but it was soon established that
their claims were untenable.
First, Manorama should have been interrogated in her place of residence, instead of which she
was taken to the Assam Rifles camp. Second, as the lawyers appearing on Manorama’s mother’s
behalf stated, ‘the jawans…had ample time to requisition female constables to conduct the searches
on the victim’s home and persona but this was not adhered to’.50 Also, the forensic evidence showed
that she was neither killed at the place where her body was found nor the way that Assam Rifles
had stated. This enraged public opinion in Manipur. From July 2004, the Meira Paibies began
an unprecedented movement against the AFSPA that has captured the imagination of all civil
society groups working on peace and continues even today. The Meira Paibies gave leadership to
the formation of an apex civil society organisation called the Apunba Lup.
However, the difficulties that the Meira Paibies face often seem insurmountable. Increasing
militarisation has led to a masculinisation of the public space. Newspapers from the region report
that violence against women is on the increase. In a report in 2004, one observer said, ‘There were
12 women murder cases, four attempted murders, 11 suicides, 28 assaults, 17 child abuse cases,
49 complaint cases and 23 lost cases’—and these were allegedly higher than in the previous years.51
The problems that women face in their activism are borne out by the fact that in 2005, the PLA
killed members of the Meira Paibies. As previously stated, in the state discourses the PLA is often
marked as an ally of the Meira Paibies, and so the women’s groups are considered suspect. The
Shillong Times reported:
The army strongly denied the charges made by PLA that Meira Paibi (women folk) leader
Takhellambam Menaka Devi who was shot dead by the militant group was involved in the
killing of a PLA cadre and arrest of four other militants by troops of the Assam Rifles.
The PLA Monday claimed killing Menaka Devi and said that she was killed by its cadres on the
night of June 27 after she was found guilty of working as an informer of the Assam Rifles against
the ‘revolutionary groups.’ The outfit also charged that the woman foiled a plan by PLA cadres to
ambush the Assam Rifles by giving prior information of the plan to the troops.
But the army PRO, Lt Col S.D. Goswami said the security forces deployed in the state has
high regard for women. The women organisations and the security forces have a common goal of
restoring peace and normalcy in the state. However, some militant groups suspect that the security
forces and the Meira Paibis are working hand in glove. The allegations by the PLA are baseless,
the PRO said. The Assam Rifles condoled the death of the Meira Paibi leader. An Assam Rifles
officer Col J.K. Chourasi condoled the death of the woman by visiting her house.52
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In August 2006, it was reported that some Meira Paibies were negotiating with Assam Rifles
for peace in Manipur. But the next day, a report said:
Dismissing efforts by Indian Army authorities particularly the Assam Rifles of holding talks
with Meira Paibis to bring peace and tranquillity in the State as cover-up exercises, the Apunba
Lup said until and unless the Armed Forces Special Powers Act 1958 is repealed no positive
development can be achieved.53
The reactions of the spokespersons of the Apunba Lup portray that there is pervasive tension
in the region and the situation for the Meira Paibies is not comfortable. They are caught
between many different groups and factions, such as the different factions of the underground
movement and the state Armed Forces.
The other effect of militarisation is the polarisation of society on the basis of ethnicity. Women
in Manipur are caught within this thrust towards polarisation. Apart from the Meira Paibies,
who are Meiteis, there are Naga women activists in Manipur whose activities fall within the
categories of peace movements and agitations against border laws. For instance, the Naga Women’s
Union (NWU) in Manipur has 15 constituent units, one of the more exceptional of which is
the Moyon Sanuw Ruwrkheh (MSR). The Moyon tribe inhabits the Chandel district, that is in
the southeastern part of Manipur. The Moyon women’s organisation was formed in 1950 to
improve the social status of Moyon women. From April 1994, the Moyon women’s organisation
has included a number of political demands in their annual resolutions, calling for the equal right
of women to inherit property and beginning an agitation for women to be in decision-making
bodies. These resolutions were brought up for discussions at the Moyon Naga Council, where
the president of the MSR was given the right to vote, becoming the first woman to vote in the
elections of the council. In 1997, for the first time, a Moyon woman became the speaker of
the Assembly of the Naga Moyon Council. No other Naga tribe in Manipur has given their
women the right to vote in their Legislative Councils.54
The Moyon women are extraordinary in another way as well: they tried to initiate a dialogue
with Kuki women living in their proximity. They had some initial success, but later the Kuki
women activists informed them that their men were unwilling to let such a dialogue continue.
Notwithstanding the pressure from the men, the Kuki women and the MSR representatives
organised a formal dialogue between the women activists of the two groups. On the day of
the dialogue, however, they were informed through an emissary that it would not take place
as the Kukis were unwilling to continue it. The Moyon women are of the opinion that although
the Kuki women were willing to have a dialogue on peace, their men felt threatened by such
a dialogue.
Communities, Gender and the Border
277
Even after this setback, the MSR has continued its activities towards peace. The group established networks with other Naga groups and is trying to organise a women’s dialogue between
the Isaac-Muivah and Khaplang factions of the National Socialist Council of Nagaland (NSCN).
In fact, the MSR crossed international borders to speak to the leaders of the Khaplang faction,
in the process getting arrested by the Border Security Force. Through interventions by the Chief
Ministers of Nagaland and Manipur, all charges were dropped. Apart from these sensational
endeavours, the representatives of the MSR organise peace campaigns through awareness-raising
programmes, seminars and workshops on peace and harmonious coexistence in different localities.
They also collaborate with other human rights organisations on fact-finding investigations.55
Apart from peace activities, the NWU in Manipur also undertakes developmental activities. It
campaigns for women candidates in the Lok Sabha elections, and it has begun campaigning for
the inclusion of women in the Naga village councils, none of which have women as office-bearers.
Since this is a source of great disappointment among the Naga women, the NWU campaigns
on this issue on a priority basis. The NWU also works towards income generation programmes
for the women. The other priority area is doing away with the disparity in wages between male
and female workers in Naga society.56
However, the group’s greatest achievement has been over property rights. Traditionally, Naga
women do not inherit immovable parental property such as land. But as a result of campaigns by
these women, the Naga tribes in Manipur are slowly trying to correct this discrimination. This
has been possible because the Naga Hohos (tribal councils) view this issue favourably and have
included it in their agenda.
The Naga women are caught between their battles within their own community and are also in
competition with the Kukis and Meiteis on the other. Once it had been declared that the AFSPA
was inoperative within the city limits of Imphal, Manipur’s Naga areas erupted in a revolt. The
Nagas had been trying to get the AFSPA repealed in their areas but had not been successful.
This was part of the carrot and stick policy of the Government of India.
It had declared a ceasefire in all Naga areas, shocking the Meiteis, who had also been campaigning for peace for a long time. Following this, the Meiteis, under the leadership of the Meira
Paibies, accelerated their campaigns against the AFSPA, as a result of which Imphal city was
declared outside the purview of the Act. The Nagas resented this and restarted their agitations.
Manipur could have erupted in fratricidal conflicts, but both the leaders of the Meira Paibies and
the NWU attempted to preserve peace in the area. As a result of their activism, violence ebbed.
Today, NPMHR has come out openly in support of Sharmila’s stand against the AFSPA.
A recent news report from Imphal said that the NPMHR:
…has extended solidarity to the fast unto death agitation launched by Irom Chanu Sharmila
against prolonged imposition of draconian Armed Forces Special Powers Act, 1958 in Manipur.
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NPMHR acknowledged and supported the strong determination of Sharmila against human
rights violations in Manipur, its convenor Phamhring Sengul said in a statement.57
If two communities such as the Meiteis and the Nagas can join hands against the AFSPA, that
in itself would be victory for the people of Manipur, in general, and the women of Manipur, in
particular. Since the events are ongoing, we have to wait and see how the future unfolds. What
is apparent is that by marking this area as disturbed, the State seems to have created enormous
problems for the people, leading to the marginalisation of an extraordinary group of women.
Both the Meira Paibies and the NWU are caught up in their communitarian problems.
There is deep distrust between the two communities. The Government of India, the Armed Forces
and the underground are all seeking to reap the benefits of this division. They are marking the
women’s groups as ‘terrorists’ or ‘criminals’, thereby reducing these groups’ ability to negotiate
for peace. It is also true that the women are unable to rise above the interests of their own
groupings/nationalities—but, then, it is unfair to expect that women will not support their subnational causes.
However, even given such complexities, the women are trying to raise their voice against the
draconian border laws. That the NPMHR is willing to endorse Sharmila’s protests goes to show
that now the State, the Armed Forces or the rebels might not be able to utilise the intercommunity
cleavages and pit one community against the other. Also, the leaders of the state should realise
that criminalisation of the underground should not automatically lead them to assume that all
members of the community in question are criminals, and treat them as such. This generalisation would only marginalise the saner voices in society, of which the Meira Paibies are a part.
NOTES & REFERENCES
1. Hazarika, Joysankar. 1996. Geopolitics of Northeast India: A Strategical Study, p. 74. New Delhi: Gyan Publishing
House.
2. Mackenzie, A. 1979. The North-East Frontier of India, p. 207. Delhi: Mittal Publications.
3. Allen, B.C. 2002. Gazetteer of Naga Hills and Manipur, p. 14. New Delhi: Mittal Publications.
4. Ibid., p. 13.
5. Ibid., p. 128.
6. Ibid., p. 126.
7. Joykumar Singh, Naorem. 2002. Colonialism to Democracy: A History of Manipur 1819–1972. Guwahati:
Spectrum Publications, pp. 109–45.
8. Khan, Sir Muhammad Zafrullah (Law Member). Legislative Assembly Debates (8 September 1939), p. 397.
Nehru Memorial Museum and Library.
9. Aikman, A. (Bengal, European) Legislative Assembly Debates (8 September 1939), p. 402. National Library,
Kolkata.
Communities, Gender and the Border
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10. Banerjea, Dr P.N. (Calcutta Suburbs) Legislative Assembly Debates (14 September 1939), p. 561. National
Library, Kolkata.
11. Chaliha, Kuladhar, in The Constituent Assembly Debates, Vol. IX, Tuesday, 6 September 1949, pp. 1–2 of 20.
Available online at http://parliamentofindia.nic.in/debates/vol9p27a.htm, accessed on 10 May 2007.
12. Prasad, Brajeshwar, in The Constituent Assembly Debates, Vol. IX, Tuesday, 6 September 1949, p. 3 of 20.
Available online at http://parliamentofindia.nic.in/debates/vol9p27a.htm, accessed on 10 May 2007.
13. Bordoloi, Gopinath, in The Constituent Assembly Debates, Vol. IX, Tuesday, 6 September 1949, p. 4 of 26.
Available online at http://parliamentofindia.nic.in/debates/vol9p27a.htm, accessed on 10 May 2007.
14. Brass, Paul R. 2000. ‘The Strong State and the Fear of Disorder’, in Frankel, Francine R., Zoya Hasan, Rajeev
Bhargava and Balveer Arora (eds), Transforming India: Social and Political Dynamics of Democracy, pp. 60–62.
New Delhi: OUP.
15. See objections made by Kamath, H.V. in The Constituent Assembly Debates, Vol. IX, Tuesday, 2 August 1949,
p. 20 of 21. Available online at http://parliamentofindia.nic.in/debates/vol9p3a.htm, accessed on 10 May 2007.
16. Zaidi, Col. B.H. in The Constituent Assembly Debates, Vol. IX, Tuesday, 3 August 1949, p. 1 of 17. Available online
at http://parliamentofindia.nic.in/debates/vol9p4b.htm, accessed on 10 May 2007.
17. Brass, ‘The Strong State and the Fear of Disorder’, op. cit., p. 67.
18. Naorem 2002, op. cit., p. 179.
19. Manipur Update. 2000. ‘The Phenomena: Enforced Disappearances in Manipur’, Manipur Update, 1(3),
February 2000, p. 1. Available online at http://www.geocities.com/manipurupdate/feature_1.htm, accessed on
12 May 2007.
20. Naorem 2002, op. cit., p. 211.
21. Khala, Khatoli. 2003. The Armed Forces (Special Powers) Act and its Impact on Women in Nagaland. New Delhi:
WISCOMP, March, p. 25.
22. Deputy Speaker, Lok Sabha Debates, 18 August 1958.
23. Mohanty, Lok Sabha Debates, 18 August 1958.
24. M. Ananthasayanam Ayengar, Speaker, Lok Sabha Debates, 18 August 1958.
25. Singh, Laishram Achaw, Lok Sabha Debates, 18 August 1958. NMML.
26. Ghosh, Subir. 2001. Frontier Travails. Northeast: The Politics of a Mess. New Delhi: Macmillan India, p. 173.
27. Phanjoubam, Tarapot. 1993. Insurgency Movement in Northeastern India. New Delhi: Vikas Publishing
House, p. 57.
28. Atul Chandra Koch vs District Magistrate Dibrugarh, AIR 1981, GAU 88, p. 90.
29. Peoples Union for Human Rights vs Union of India, AIR 1992, GAU 23, p. 36.
30. Ibid.
31. Indrajit Baruah vs State, AIR 1981, GAU 6, p. 8.
32. Operation Bluebird was an anti insurgency operation covering around 30 villages in Nagaland by the Asssam Rifles.
It started on 11 July 1987 and lasted for 4 months till the end of October.
33. Unpublished reports of Watsu Mondung, courtesy Merenla Jamir, Dimapur, 1996.
34. NPMHR vs Union of India, AIR 1990, GAU 1, p. 1.
35. Oinam, Sunil. 1996. ‘Housewife Gangraped’, North East Sun, 1–14 September, 2(3): 6.
36. Thokchom, Khelen. 1997. North East Sun, 15–30 September, 3(4): 17.
37. Ghosh 2001, op. cit., p. 169.
38. Mahanta, Aparna. Unpublished. ‘Special Lecture delivered at the Second Civil Society Dialogue on Human Rights
and Peace in East and Northeast’, held on 13–16 July 2002, in Shantiniketan, West Bengal.
39. Allen, B.C. Gazetteer of Naga Hills and Manipur, p. 58.
40. Ibid., p. 47.
41. Ibid.
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Paula Banerjee
42. Ibid., p. 32.
43. Naorem 2002, op. cit., p. 141.
44. Brara, N. Vijaylakshmi. ‘The Role of Manipuri Women in Conflict’, courtesy Imphal Free Press. Available online
at http://manipuronline.com/Features/April2002/womeninconflict26_2.htm, accessed in June 2006.
45. Laishram, Suresh. Health and Status of Women in Manipur. Available online at http://manipuronline.com/Features/
April2002/women’s status26_1.htm, accessed in May 2007.
46. ‘Manipuri Women Against Militarisation’, a pamphlet published by the All Manipur Women’s Reformation and
Development Samaj (Nupi Samaj), undated.
47. Manipur Update. 2000. ‘The Fear of Rape: The Crime and Punishment’, Manipur Update. January 2000, 1(2),
Feature 4. Available online at http://www.geocities.com/manipurupdate/january_feature-4.htm, accessed in
May 2007.
48. After Manorama’s death the Meira Paibis led a protest movement where 32 civil society groups have participated.
This is a testimony to their popularity
49. ‘Dharna Against Draconian Law’, North East Sun, 15–30 November 1996, 2(8): 17.
50. Sharma, Sarojkumar K. 2004. ‘Counsel Picks Holes in Rifles Defence’, Hindustan Times, 5 November 2004.
51. Assam Tribune. 2004.’Violence Against Women on the Rise’, Assam Tribune, 10 December 2004.
52. Available online at www.theshillongtimes.com/c-6-July.htm, accessed on 12 May 2007.
53. The Sangai Express. 2006. ‘Apunba Lup Scoffs at AR’s Gestures’, The Sangai Express, 2 August 2006. Available
online at http://www.peacewomen.org/news/India/Aug06/womensgroup_army.html, accessed on 19 April 2008.
54. Author’s interview with Gina Shangkham, President MSR, 11 September 1999, in Dhulikhel, Nepal.
55. Ibid.
56. Raisurang. 1998. ‘A Brief Report of the Naga Women’s Union, Manipur’, Raisurang, No. 4 (1998) pp. 1–4.
57. The Sangai Express. 2006. ‘NPMHR in solidarity with Sharmila’s cause’, The Sangai Express, Imphal, 14 October
2006.
11
Parens Patriae: Exercising Patriarchal
Prerogative in Post-Partition India
Ritu Menon
Modern India’s history writing has been dominated by the Partition of 1947 and by that event’s
political, literary, social and economic analyses. That traumatic event apart, post-Independence India
was also remarkable for the quantity of legislation that was passed to deal with the massive task of
resettlement and rehabilitation, evacuee property, division of assets and so on. A series of treaties,
ordinances, agreements, resolutions, bills and acts were passed during 1947–50, covering various
aspects of the transfer of power and populations. Nationally, a number of bills were introduced
in Parliament to cover practically every aspect of refugee rehabilitation and resettlement: the
Evacuee Property Act in 1947; the Finance Administration Bill, dealing with loans to small
businesses and urban refugees, in February 1948; the Displaced Persons (Institution of Suits Bill)
in August 1948; the Resettlement of Displaced Persons (Land Acquisition) Bill in September 1948;
the Influx from Pakistan (Control) Bill in April 1949; the Abducted Persons (Recovery and
Restoration) Bill in 1949; the Administration of Evacuee Property Bill and Displaced Persons
(Claims) Act in August 1950; the Interim Compensation Scheme in 1953; and, finally, the Displaced
Persons (Compensation and Rehabilitation Act) in 1954.
Detailed and extensive debates marked the introduction and passage of all these bills and
ordinances, and a critical examination of them would require a whole new essay. Suffice it here
to say that even where consensus was not forthcoming (as on the question of the internally
displaced: were they to be considered refugees? Or on the guarantees and terms of loans to urban
refugees; or the fundamental rights of abducted women, for example; and, repeatedly, on claims
and compensation), the issue was discussed threadbare, even if it took several weeks. Amendments
were proposed, objections were raised, special status claims put forward.
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With regard to abducted women, an Inter-Dominion Conference was held at Lahore on 6
December 1947, at which India and Pakistan agreed upon steps to be taken for the implementation
of recovery and restoration, and appointed Mridula Sarabhai as Chief All India Organiser.
The recovery operation itself was in the charge of the Women’s Section, Ministry of Relief
and Rehabilitation, with Rameshwari Nehru as Honorary Advisor. The primary responsibility
for recovery was with the local police, assisted by a staff of one additional inspector-general,
two deputy superintendents of police, 15 inspectors, 10 sub-inspectors and six assistant subinspectors. Between December 1947 and July 1948, the number of women recovered across both
countries was 9,362 in India and 5,510 in Pakistan.
Recoveries dropped rather drastically after July 1948—one reason put forward being the
withdrawal of the Military Evacuation Organisation from both territories—and it was felt that
a more binding arrangement was necessary for satisfactory progress. Accordingly, an agreement
was reached between India and Pakistan on 11 November 1948 that set out the terms for
recovery in each dominion. Ordinances were issued in both countries—in January 1949 for India
and May 1949 for Pakistan; in the case of India, it was to remain in force till January 1950, in
Pakistan, till it was abrogated.
In a letter dated 3 March 1948 to K.C. Neogy, Minister of Relief and Rehabilitation, Jawaharlal
Nehru wrote:
I have just had a telephone message from Sushila Nayyar from Patiala. She told me that a great
majority of the (Muslim) women recovered refused to leave their new homes, and were so
frightened of being taken away forcibly that they threatened to commit suicide. Indeed, last
night 46 of them ran away from the camp through some back door. This is a difficult problem.
I told Sushila that she can assure these women that no one is going to send them forcibly to
Pakistan, but we thought it desirable for them to come to Delhi so that the Pakistan High
Commission and others could then find out what their desires were. This would finally settle
the question. In any event I assured her that we would not compel any girl to be sent to Pakistan
against her wishes.1
It was generally assumed that all abducted women were captive victims and wanted nothing
more than to be restored to their original families as soon as possible. Said Gopalaswami
Ayyangar in Parliament:
Women or abducted persons are rescued from surroundings which, prima facie, do not give
them the liberty to make a free choice as regards their own lives. The object of this legislation is
to put them in an environment which will make them feel free to make this choice.2
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Other members disagreed and demurred at the arbitrary powers being given to the Tribunal
to decide who was or was not abducted and should be sent back. Purnima Banerji cautioned the
government against being overzealous:
Time has passed, and in between (these girls) have lived in association with one another and
have developed mutual attachment as…couples…. Such girls should not be made to go back
to countries to which they originally belonged merely because they happen to be Muslims or
Hindus, and merely because the circumstances and conditions under which they had been
moved from their original homes could be described as abduction.3
Mahavir Tyagi,4 in fact, declared that such a recovery was, legally speaking, the real abduction:
‘…My feeling is that already violence has been committed on them once…would it not be another
act of violence if they are again uprooted and taken away to the proposed camps against their
wishes?’
Despite the urgings of some members that some mechanism be devised to ensure that no
unwilling woman was forced to return to her country, Nehru declined to do so. He simply gave
a verbal assurance that no compulsion or coercion would be used, and added, ‘I have not come
across a single case of an adult abducted woman who had been recovered and who was pushed
into Pakistan against her will.’5 The clause in question was then put to the vote and passed by the
House. The recovered women themselves, although promised a ‘free’ environment and ‘liberty’
were, by the very terms of the Bill, divested of every single right to legal recourse. The writ of
habeas corpus was denied; their marriages were considered illegal and their children illegitimate;
they could be pulled out of their homes on the strength of a policeman’s opinion that they
were abducted; they could be transported out of the country without their consent; confined in
camps against their wishes; have virtually no possibility of any kind of appeal (bar the compassion
of the social worker or the generally unsympathetic authority of the Tribunal);6 and, as adult
women and citizens, be once again exchanged, this time between countries and by officials.
At least three members referred to the gravity of the measures proposed and pointed out that
they violated the fundamental rights guaranteed by a Constitution that would come into effect the
very next month (January 1950). They warned that the Supreme Court could not countenance
the denial of the writ of habeas corpus, and that it was the right of every Indian citizen—which
these women were—to choose to remain in India; by law and by right, they could not be deported
without their consent. Jaspat Roy Kapoor, objecting to the powers vested in the Tribunal, said:
What do we find in this bill? We find that after release (these women) will have absolutely
no say in the matter of the place where they are to live, in the matter of the companions with
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whom they are to live, and in the matter of the custody of their children…. I ask, in such cases,
shall we be conferring liberty and freedom on her if we deny her these rights?7
As he was at pains to point out, unless children were included in the legislation, there would
be no chance of returning the women at all. And Mahavir Tyagi reminded the House:
These women are citizens of India…they were born in India itself…they have not yet gone to
Pakistan…. In taking them to Pakistan without their consent, even if the agency be the police
or the sanction be the proposed Tribunal, shall we not contravene the fundamental rights sanctioned by the Constitution?… The fact that their husbands have gone to Pakistan does not
deprive the adult wife of her rights of citizenship. They have their own choice to make.8
To this, the Minister of Relief and Rehabilitation replied that he had himself proposed an
amendment that would extend the powers of the Tribunal and allow it to determine not only
whether the woman was abducted or not, but whether she should be sent to Pakistan or allowed
to stay back. On the issue of habeas corpus, he said, ‘If the interpretations should be that what we
have provided in this particular Bill is not quite in accordance with Article 21 or any other provision
of the Constitution, then of course, the remedy for a writ of habeas corpus will remain’.9
The Abducted Persons (Recovery and Restoration) Bill extended to the United Provinces of
East Punjab and Delhi, the Patiala and East Punjab States Union (PEPSU) and the United States
of Rajasthan, and consisted of 10 operative clauses which the Minister termed ‘short, simple,
straightforward—and innocent’. The relevant clauses are reproduced here:
2. Interpretation
(1) In this Act, unless there is anything repugnant in the subject or context,
(a) ‘abducted person’ means a male child under the age of sixteen years or a female
of whatever age who is, or immediately before the 1st day of March 1947, was, a
Muslim and who, on or after that day and before the 1st day of January 1949, had
become separated from his or her family and is found to be living with or under
the control of any other individual or family, and in the latter case includes a child
born to any such female after the said date.
4. Powers of police officers to recover abducted persons
(1) If any police officer, not below the rank of an Assistant Sub-Inspector or any other police
officer specially authorized by the Provincial Government in this behalf, has reason to
believe that an abducted person resides or is to be found in any place, he may, after
Parens Patriae
285
recording the reasons for his belief, without warrant, enter and search the place and take
into custody any person found therein who, in his opinion, is an abducted person, and
deliver or cause such person to be delivered to the custody of the officer in charge of the
nearest camp with the least possible delay.
(2) In exercising any powers conferred by sub-section (1) any such police officer may take
such steps and may require the assistance of such female persons as may, in his opinion,
be necessary for the effective exercise of such power.
5. (2) In making any regulations under this section, the Provincial Government may provide
that a breach thereof shall be tried and punished by the officer in charge of the camp in
such manner as may be prescribed in the regulations: Provided that no abducted person
shall be liable to be tried in a criminal Court in respect of any offence made punishable
by any regulations made under this section.
6. Determination of question whether any person detained is an abducted person
(1) If any question arises whether a person detained in a camp is or is not an abducted person
or whether such person should be restored to his or her relatives or handed over to any
other person or conveyed out of India or allowed to leave the camp, it shall be referred to,
and decided by, a tribunal constituted for the purpose by the Central Government.
(2) The decision of the tribunal constituted under sub-section (1) shall be final: Provided
that the Central Government may, either of its own motion or on the application of
any party interested in the matter, review or revise any such decision.
7. Handing over of abducted persons to persons authorized
(1) Any officer in charge of a camp may deliver any abducted person detained in the camp
to the custody of such officer or authority as the Provincial Government may, by general
or special order, specify in this behalf.
(2) Any officer or authority to whom the custody of any abducted person has been delivered
under the provisions of sub-section (1) shall be entitled to receive and hold the person in
custody and either restore such person to his or her relatives or convey such person out
of India.
8. Detention in camp not to be questioned by Court
Notwithstanding anything contained in any other law for the time being in force, the detention
of any abducted person in a camp in accordance with the provisions of this Act shall be lawful
and shall not be called in question in any Court.
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9. Protection of action taken under Act
No suit, prosecution or other legal proceeding whatsoever shall lie against the Central
Govern-ment, the Provincial Government or any officer or authority for, or in respect of,
any act which is in good faith done or intended to be done in pursuance of this Act.
More than 70 amendments were moved by 20 members in an extended debate on the Bill
that took a full three days to pass. Every clause, sub-clause and section was discussed threadbare,
and serious objections were raised on everything from the Preamble to the operative clauses. The
main objections related to the definition of abductors and the time frame that the Bill referred
to (1 March 1947–1 January 1949); the virtually unlimited powers given to the police, with
complete immunity from inquiry or action and no accountability at all; the denial of any rights or
legal recourse to the recovered women; the question of children; the constitution of the Tribunal;
camp conditions and confinement; forcible return of unwilling women; unlimited duration for
the Bill to remain in force; and the unequal and disadvantageous terms of the agreement for
India vis-à-vis Pakistan.
The Indian government’s response to the status of abducted women and their children—indeed
to the very definition of their beings as ‘abducted’—epitomised what Wendy Brown10 identifies
as the defining characteristic of a liberal State: paternalism and institutionalised protection.
The mai–baapism of the Indian State post-partition displayed all the constitutive elements of
patriarchal parenthood, its authoritarian and protective aspects, its simultaneous expression of
power and care which it articulates and exercises through policy, which in turn is regulated and
entrenched through the administrative-judicial machinery. Speaking of refugees and displaced
persons, those in need of care and shelter, Ranabir Samaddar11 maintains that ‘there is always a
double imperative in how the state governs—a contradictory logic of power and care’. We could
say that the responsibility of being both mai and baap with regard to abducted women displayed
the classic features of single parenthood—when to be authoritarian, when to nurture—on the
one hand, and a profound disjunction between the ethics of caring and the exercise of power, on
the other. But it also highlighted two conflicting visions of rights:
…a vision of rights that emerged from the concept of nationhood and citizenship, and the
vision that emerged from the affected population’s daily negotiations with governmental authority
over every tiny bit of subsistence-means and the consequential expansion of the moral universe
of claims. One resulted in an expansion of citizenship, and the other resulted in an expansion of social security beyond strictly legal confines.12
Interesting and important as this argument may be in general, I would like to explore it
further with specific regard to the Abducted Persons Act, abducted women themselves, the
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State’s immunity from legal action against it, and its own criminal action in forcibly recovering
and repatriating adult female citizens of India, and, by extension, Pakistan—in short, its own
criminal behaviour as an abductor. In order to do so, we will try to unravel the tangled skein of
relationships, transgressions, violations and taboos that the abducted woman embodied, as well
as the highly charged arena of communal, sexual and male identity that the State sought to enter
and intervene in.
Who was this abducted woman? How was she to be identified in order that she might be
recovered? The Act’s definition of an abducted person (it was careful not to specify women) is as
stated. From official statistics, it was clear that the majority of women recovered were primarily
from rural areas in both countries, and below the age of 35. They were, of course, Hindu, Muslim
or Sikh. But there the certainty ends. They may have been ‘abducted’ as Hindu, Muslim or
Sikh, but when they were recovered, they had already been converted, their identities confused.
After recovery, would they have assumed their former religious identities? Would they have
been reconverted? Would they have remained converts?
Furthermore, how could one establish, beyond reasonable doubt, that they had really been
abducted? From what we gathered through interviews, accounts by social workers and some
documents, the circumstances of their ‘abduction’ varied widely. Some women were left behind
as hostages for the safe passage of their families; others were separated from their group or family
while escaping, or strayed and were picked up; still others were initially given protection and then
incorporated into the host family; yet again, as in the case of Bahawalpur state, all the women
of Chak 99 were kept back, and in Muzaffarabad district of Azad Kashmir, it is said that not a
single Sikh male was left alive and that most of their women and young girls were taken away
to the provinces, primarily Sindh. Some changed hands several times or were sold to the highest
or lowest bidder, as the case might be; some became second or third wives; and very, very many
were converted and married and lived with considerable dignity and respect.
The procedure for identifying and locating the abducted was: lists were compiled on the basis
of claims filed by the relatives of missing women and sent to those in charge of the recovery
operation in either country. These were then verified, if possible, and locating the women invariably
required the help of local people. Needless to say, this help was not always forthcoming. Kamlaben
Patel, in charge of recoveries in Pakistan, said that ‘…in Patiala, Nabha, Faridkot and other such
states in East Punjab, and in Bahawalpur in Pakistan, there were innumerable difficulties in getting the approval and support of the local elders…and organizing recovery in Jammu was like
trying to chew iron’.13
Search officers and social workers told us that they used all kinds of tactics to locate and
‘rescue’ the women. ‘We had to go to far-off villages at all hours,’ said Kammoben, ‘sometimes
walking for three or four kilometres. We didn’t take a vehicle because the local people shouldn’t
get to know about the arrival of the police.’ The local police would often tip off families before
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the search party arrived so that they could remove the women from the premises. If this was not
possible, they would be hidden in tandoors or where grain was stored till the police departed.
They would then be spirited away to a safer spot. One liaison officer recounted:
The operation was a raid in every sense of the word—we did many irregular things, like
dipping a police officer under water and keeping him there till he told us where the women
were…sometimes I would slap the women and tell them that I would shoot them if they
didn’t inform us.14
As we have elaborated elsewhere, it was by no means possible to assume that any and every
woman located in a home or community was eligible for recovery. Resistance to being thus
recovered came not only from their ‘abductors’ but also from the women themselves. A common
plea was that their liaisons had been made freely and under no compulsion; indeed, many had
taken advantage of the social turmoil to marry men of their choice from outside their community, something that would almost certainly have been disallowed in more normal times. The
untidiness of the formulation in the Abducted Persons (Recovery and Restoration) Bill found
its harrowing and messy consequences in implementation throughout the eight years that the
programme was in operation. Describing the proceedings at one court hearing regarding the
case of seven disputed women in Lahore, Kamlaben Patel said:
The court ordered all seven women and children to be released immediately, because as long
as this understanding between India and Pakistan did not take the shape of a law, its value in
court was that of a blank piece of paper. Perhaps this was valid in the eyes of the people but for
the lawyers and barristers, the work of recovering women had no value at all. It was then that
I realized this clearly.
A Christian advocate had, with a great deal of persuasion, agreed to take up our brief. However, as soon as it was known that he was going to represent us, he was threatened with being
boycotted in the court itself and he refused to accept our case even before the court began its
session. Mr Nayar who had accompanied us was originally a magistrate, but as he was not
registered in the Pakistani court, he could not represent us in this case. It fell to my lot to stand
in the dock meant for the accused and give an idea of the agreements made between the two
countries, and the work being done in both countries. I explained to the court how Hindu
women had been recovered from West Punjab and sent over to India, and, similarly how Muslim
women had been sent from India to West Punjab. To this date, many women and children had
been returned to their country and their families. My voice was drowned by loud cries in English
from the chairs occupied by the advocates: ‘We are not concerned with your work. We do not
wish to send Indian women back from Pakistan.’15
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289
More importantly, for the purposes of this discussion, the terms of the Bill return us to the two
critical concerns of this enquiry: the suspension of all civil and human rights by the State; and
its own criminal culpability in the matter of the forcible recovery and repatriation of abducted
women.
Notwithstanding its self-definition as secular and modern, the Indian State upheld the primacy
of community and religious identities and differences, accorded a central place to the importance
of the family, and subscribed to prevailing notions of honour and shame. Thus, Shibban Lal
Saksena, Member of the Legislative Assembly, could say:
Sir, our country has a tradition. Even now the Ramayana and the Mahabharata are revered. For
the sake of one woman who was taken away by Ravana the whole nation took up arms and
went to war. And here there are thousands, and the way in which they have been treated was
told by the Honourable Minister himself…what-not was done to them.16
Several other members concurred with this sentiment, reminding the House of its ‘moral duty’
to behave honourably. A civilised State, behaving responsibly, upheld the honour of its (male)
citizens and communities by restoring their ‘sisters’ and its own citizens to where they ‘belonged’—
with their respective Hindu or Muslim families and their own Hindu and Muslim countries.
By becoming the father-patriarch, the State found itself reinforcing official kinship relations by
discrediting and, in fact, declaring illegal, those practical arrangements that had, in the meantime, come into being and were functional and accepted.17 It was not only because abduction was
a criminal offence that it had to be redressed—its offence was also that, through conversion and
marriage, it transgressed prescribed norms in every respect.
The Abducted Persons Act was remarkable for the impunity with which it violated every
principle of citizenship, fundamental rights and access to justice, and for contravening all
earlier legislations with regard to marriage, divorce, custody and guardianship and, eventually,
inheritance—not so much to property but, more critically, to membership of a (religious) community. Furthermore, as Wendy Brown has elaborated, a liberal state casts the family as natural
and pre-political, and the woman as a crucial signifier of the family is constructed in these terms.
Since much of women’s lives are lived in the private or familial realm she argues, the place where
rights are conferred, civil society, is substantially limited.18 One could further argue that even those
few rights that women have won are generally held in suspension—or at least in abeyance—in
the private domain, that in practice, in classical formulations of liberalism, rights do not apply at
all in this sphere. Recognising personhood inside the household is usually resisted. If this is the
reality or the norm in normal times, how much more negative is the legal status of the woman
abducted, envisioned primarily as a member of her family and community, rather than as enjoying
the positive legal status of a rights-bearing citizen of a secular State.
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A woman thus constructed may then also be deprived of her rights, as well as be subjected
to criminal violation even by the State in the name of honour. This may, then, be a corollary to
the ‘honour killings’ of women that are not only such a common occurrence across the subcontinent, but are carried out more or less with impunity.
However, individual or even collective or group criminal activity is liable to prosecution and
punishment, at least in theory. What is one to make of criminal action by a State that has, claiming
sovereign immunity, already exempted itself from such legal action? Abduction, then and now,
is a criminal offence; forcible recovery is akin to abduction, as several members of the Legislative
Assembly pointed out in 1949. The Abducted Persons Act was not the only piece of legislation
enacted at the time that granted immunity to those acting for the government: the Displaced
Persons (Claims) Acts of 1950 and the Ordinance that provided for the registration of refugees in
Delhi (Ordinance No. XXIV of 1947) contained similar clauses. In fact, they went even further
because they penalised those who refused to comply with specific sections of the Act. The penalty
consisted of fines and/or imprisonment up to three months; and in the case of the Displaced Persons
Claims Act, refugees had no recourse to appeal should there be a dispute over claims. None of them,
however, empowered the State to engage in criminal activity in the course of discharging its responsibility; with the Abducted Persons’ Act, the very act of recovery was often an act of abduction,
with government agents having to kidnap the women they were seeking to repatriate.
POWER AND CARE
The mai–baap aspect of the Indian State simultaneously presents itself as nurturant and authoritarian, caring yet powerful. The State as protective parent also displayed the characteristics of
what Wendy Brown calls the ‘patrimonial authority of the earliest household formations, where
male authority is rooted in a physical capacity to defend the household against pillaging warrior
leagues (also male)’.19 She argues that modern liberal states accord this prerogative power to themselves by, at once, claiming to protect through the legitimate exercise of violence. She says:
This arrangement is codified and entrenched through asymmetrical legal privileges and an
asymmetrical sexual division of labor: household patriarchs ‘protect’ dependent and rightless
women from the violence of male political organization. In this respect, the state is an insignia of
the extent to which politics between men are always already the politics of exchanging, violating,
protecting, and regulating women; the one constitutes the imperatives of the other.20
Because prerogative power appears to its subjects (in this case, abducted women) as not just the
power to violate but also the power to protect—the power of the police—it is quite difficult to
Parens Patriae
291
challenge or deny. When legal immunity against any and all civil or criminal charges is added
to this prerogative, State power is almost total. As would be the power of the patriarch in the
pre-modern family.
This discussion has highlighted the ambivalent and conflictual relationship between the State
and a specific group of subjects; the paradox whereby the enactment of a law results in a loss
or suspension of rights (albeit temporarily) rather than their validation; where judicial intervention is unavailable, indeed disallowed; and where the possibility of grievous injury to those
whose care has been entrusted to the State is imminent. Indeed, the possibility of the protective
function of the State being overwhelmed by its powerful authoritarianism should encourage the
setting up of a process of judicial review of such emergency legislation as the Acts and Ordinances
which were passed post-partition—and continue to be passed today.
NOTES & REFERENCES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
1987. Selected Works of Jawaharlal Nehru, Second Series, Vol. 5, p. 114. Delhi: Jawaharlal Nehru Fund.
Constituent Assembly of India (Legislative) Debates, 15 December 1949.
Ibid.
Ibid.
Ibid.
For a detailed discussion on this question, please see Menon, Ritu and Kamla Bhasin. 1998. Borders and Boundaries:
Women in India’s Partition. New Delhi: Kali for Women.
Constituent Assembly of India (Legislative) Debates, 15 December 1949.
Ibid.
Ibid.
Brown, Wendy. 1995. States of Injury, p. 169. Princeton: Princeton University Press.
Samaddar, Ranabir (ed.). 2003. Refugees and the State: Practices of Asylum and Care in India, 1947–2000, p. 24.
New Delhi: Sage Publications.
Ibid., p. 27.
Patel, Kamla, Mool Sukta Ukhadela [Torn from the Roots, unpublished English translation], cf. Menon, Ritu and
Kamla Bhasin. 1998. Borders and Boundaries: Women in India’s Partition, p. 112. New Delhi: Kali for Women.
Author’s interview with K.L. Bindra, Liaison Officer, West Punjab, 1947–49, cf. Menon and Bhasin 1998, op. cit.,
pp. 117–18.
Patel, Kamla cf. Menon and Bhasin 1998, op. cit.
Constituent Assembly Debates, 15 December 1949; unless otherwise stated, all quotes in this chapter are taken
from the Debates, pp. 640–44.
We are grateful to Veena Das for having drawn our attention to this; for an elaboration, see ‘National Honour and
Practical Kinship: Of Unwanted Women and Children’, in Das, Veena. 1995. Critical Events: An Anthropoligical
Perspective in Contemporary India, pp. 55–84. Delhi: Oxford University Press.
Brown 1995, op. cit., p. 181.
Ibid., p. 187.
Ibid.
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SECTION IV
Social Ordering of the ‘Legal’
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Arvind Narrain
12
Law and Life in the State of Nature:
Archiving Stories from Legal Literacy
Abha Singhal Joshi
England circa 1651: Hobbes wrote his treatise1 outlining the theory of the State as a social contract.
The theory presupposes human beings as primarily selfish and always in competition with each
other. Force and fraud are mentioned as the ‘cardinal virtues’ of this state of existence, which
Hobbes called the ‘state of nature’. There is a lack of the finer instincts or aesthetic or literary
development.
India 2006: Hobbes’ description of the life of man in the state of nature as ‘solitary, poor, nasty,
brutish and short’ seems to sum up the condition that a vast majority of people live under. The
state of living in constant ‘fear and insecurity’, where every man is at war with the other, may
seem to others too grim a depiction of the socio-political scenario. For who can say that there is
no development of the arts or a growth of industry? And is there not ‘knowledge of the face of
the earth’ in terms of satellite launches and prior knowledge of tsunamis?
The Criminal Justice System (CJS), as experienced by legions of men, women and children
all over the country, reflects a total breakdown of the ‘social contract’ which presupposes that
people themselves contract to give up such of their rights as would put upon all of them the limitation within which they could live in peace:
…whensoever a man transfers his right or renounces it, it is either in consideration of some
right reciprocally transferred to himself, or for some other good he hopes for thereby. For it
is a voluntary act: and of the voluntary acts of every man the object is some good to himself.
And therefore there may be some rights which no man can be understood by any words or any
signs, to have abandoned or transferred. At first a man cannot lay down the right of resisting
them that assault him by force to take away his life, because he cannot be understood to aim
thereby at any good to himself. The same may be said of wounds and chains and imprisonment:
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both because there is no benefit consequent to such patience, as there is to the patience of suffering another to be wounded or imprisoned, as also because a man cannot tell, when he sees
men proceed against him by violence, whether they intend his death or not. And lastly, the
motive and end for which this renouncing and transferring of the right is introduced, is nothing
else but the security of a man’s person in his life and in the means of so preserving life as not
to be weary of it.2
One may agree with the Hobbesian hypothesis or not, but an engagement with hundreds of
women, men and children over almost two decades has pointed out time and again the glaring
misuse and abuse and, worst of all, disuse, of a system designed to give that protection and peace.
It suggests that either the Indian polity has still to reach the stage of contracting peace or a total
breakdown of the civil contract. Surprisingly, the fear, dread, disappointment and trauma of the
CJS come from each quarter—the victims, the accused, the offenders and even those who run
that system: police, judges and prison staff. Malpractices have taken over the Leviathan to create
a lookalike whose evil form has deformed and debased the original beyond recognition.
The first field of examination will be the typical crimes for which people find themselves pushed
into the CJS, the response of the system and the impact on a person’s life. This is at the cost of
inviting the frequent sardonic allegation that ‘human rights deals only with the protection of
criminals’. This chapter tries to make the argument that the segment of accused and incarcerated
persons needs attention in preference to the other, that is, the victims. Not because the victim has
any less a claim over protection from the system, or is in any way more favourably placed in terms
of getting justice, but because the pattern of disdain and cruelty shown to a person accused of or
convicted for an offence is responsible for generating that constant and living ‘fear and insecurity’
in each person. This affects the quality of life not just of those who are actually accused of crime,
but spills over to others in society; it sets limitations on the movements, lives and actions of
ordinary people where none should rationally or legally be; it engenders a lingering hatred for the
State and all its instruments and pushes a person back into that state of nature where men live in
a ‘condition of war’.
These are the conditions which erupt into violent conflicts such as individual clashes over
seemingly petty matters, as well as graver conflicts such as communal riots and caste violence. It
ultimately has a close nexus with the neglect suffered by victims themselves. Even more, it makes
victims out of ordinary people, who face the brunt of violence meted out as ‘justice’ by social
groupings for actions which are not crimes under the law of the land. The debasement of the
CJS in terms of apathy and violence is the direct source of social responses such as lynching or
other methods of the ‘alternate/informal justice system’—a system that is gradually being given a
dangerous legitimacy by the formal system.
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This chapter is based on an analysis of experiential accounts and responses of persons all over
the country, drawn from various backgrounds—rural, urban, educated, uneducated, jail inmates,
men, women and children, policemen, judges and officials encountered in scores of legal literacy
workshops conducted over a period of more than 15 years. These are the unknown and unsung
victims and criminals for whom no candles have burned and for whom no mercy petitions have
been filed. But these are the stories which find a cumulative reflection in the better-known and
much-discussed cases which hit the headlines and are often a cause of ‘shocking the conscience’
of the nation.
POOR AND POWERLESS? IN GOES YOU!!
The Profile of the Criminal
Prabal Pratap Singh3: A young face with hair neatly swept back stared back at me a little defiantly
in response to the question: ‘What are you here for?’ In the rows of young men—undertrials and
convicts at the ‘Mundakhana’ (where young offenders are housed in Tihar Jail4 in Delhi) one
could see several faces that could easily have been on the right side of the Juvenile Justice Act.
‘I never did anything. My friend made me call them up and ask for money—because I can
read and write,’ he said, straightening himself up a little. This young man and his friend were trying
to get a ‘firauti’ (ransom) out of people who put out notices, along with their contact numbers,
for ‘missing’ relatives in newspapers. Rather ingenious and reminiscent of the lovable duo in
Paper Moon (a 1973 film directed by Peter Bogdanovich, set in the depression-era midwestern
region of the United States), I thought. Just how criminal are the young minds of PPS and his
innovative friend? Are any of our processes nuanced enough to deal with them? One could see
him standing among the crowd at the Magistrate’s Court and being handed out their remand.
Fourteen days. Flat.
‘How many of you are in for “ladki bhagana” (a crude but popular way of expressing the act
of eloping with girls)?’ I ask. A number of sheepish hands go up. ‘What did you do?’ ‘We were
in love and ran away. Then we got married. Now we are “in” under charges of kidnapping and
rape.’ ‘And she is happily married,’ volunteers another young hero. The ‘love’ blossoms in the
tight tenements of urban slums. The ‘marriage’ is a ceremony propagated by the silver screen, in
an obscure temple or a ‘court marriage’ performed by an even more obscure lawyer by signing
on a stamp paper. Neither is recognised by law. And the consummation of the marriage is almost
always recognised by the law as the offence of rape. The outcome: either a too-lenient approach
by the courts with insinuations of the ‘morality’ of the girl or a dragging legal process which leaves
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young Lochinvar, all of 19 years, an embittered human being waiting to spew his hatred on the
next lady who comes into his life. The debates continue to centre, pathetically and predictably,
round the ‘class’ aspect of this and other crimes: ‘they’ are habituated to crime; such incidents
are common among ‘them’.
A children’s home in Delhi: An 11-year-old is asked why he is here. A nonchalant reply: ‘Ek
ladke se mil ke saath hazaar ki chori ki thi’ (I committed a theft of Rs 60,000 along with another
boy). At the end of the dialogue, he is asked, ‘OK, so after you leave, you won’t do all this again,
will you?’ He looks straight back and says, ‘Why not? The police beat people even if they don’t
do anything wrong.’ Indefeasible logic clear to the mind of an 11-year-old.
Almost one-half of a group of 20-odd women inmates are NDPS5 undertrials in the Ratlam
District Jail6: In the ‘open’ section where the men are housed, the proportion seems higher. Ratlam
Jail is in the nucleus of the poppy-growing area that comprises three districts.7 A look around
tells you that these are certainly not people who would be running or benefiting from the multicrore rupee racket of contraband narcotic substances. Most of them are, in fact, ‘carriers’ for a
few hundred rupees. Two old women, well over their 70s, observe the proceedings with deadpan
expressions. Our words of wisdom about remand procedures, rights of women inmates, duties
of jail staff, etc., obviously leave them cold.
Outside, a truck driver from Punjab, a senior citizen also in under the NDPS, makes a passionate appeal for reforming the CJS into having a more sensitive approach towards old people.
‘Madam, you must tell them in Delhi…this is not for me but for all buzurg (old persons) who are
in prisons all over the country. You must do something for them. At least have the trial and convict
us quickly.’ A suspiciously young face peers brightly from behind a group of men. ‘Who’s this?’
I ask. ‘Aage aa re…madam, yeh Arjun hai.’ Young Arjun is fondly introduced to us. It turns out
that Arjun is a little over 15 years old. ‘What is he here for?’ ‘Chakku.’ The ubiquitous Section 25
of the Arms Act pops up here again as it does in most jails in the country. The country, it appears,
is strewn with ‘sharp edged and deadly weapons, namely swords (including sword sticks),
daggers, bayonets, spears (including lances and javelins; battle-axes, knives (including kirpans
and khukries) and other such weapons with blades longer than 9" or wider than 2" other than
those designed for domestic, agricultural, scientific or industrial purposes…’8 An application is
made on Arjun’s behalf and, by our next visit, he has been moved to the Observation Home. It
is small comfort, though, as there are many such youngsters housed in many jails, incarcerated
with adult undertrials and offenders only because the police or the magistrates are either unaware
of the provisions of the Juvenile Justice Act 20009 or cannot be sufficiently bothered to follow
its processes.
A group of young ragpickers, all between the ages of 14 and 21, perform a role play in a ‘basti’
(slum) in Delhi. The topic given to them is police and procedures relating to arrest. The role
plays are done with a surprising attention to detail. One of the characters is the brother of the
Law and Life in the State of Nature
299
person arrested. ‘What has my brother done?’ (The questions and the responses are both delivered
in a manner resembling the dialogue delivery at the annual street-corner Ramlilas.) In response
to the strident question, the bringer of bad tidings says, ‘He has been arrested for Section
304!’10 ‘What is that?’ The messenger turns around uncertainly to the others in the pantomime.
A loud stage whisper says, ‘Half-murder, half-murder!’
After the play, in which all the teams have participated with a touching fervour and competitiveness, we get down to discussing the law. How do they know so much about the police?
‘Madam, one of us is always getting dragged to the police station on some pretext or the other.
We are ragpickers. We are mostly Muslims and migrants from Bihar and Bengal. So they call all
of us Bangladeshis. We collect raddi (waste and disused articles). Our work is such that we will
always be found in different places. Whether anything happens or not, some of us regularly get
rounded up.’ ‘Then what happens?’ ‘Then our families pay money and get us out.’ Some of them
chafe under the insult insinuated by the rounding-up. ‘Are we thieves? Are we murderers? Why
do they keep accusing us of everything?’
Role plays in workshops across the country (an effective methodology to enhance participation and interest in legal literacy workshops and flag important violations of law), invariably
show the police ‘vrooming’ into villages and neighbourhoods on bikes, kicking and pushing people,
turning over their wares in the market places. At police stations, the common scene depicted is
of the official in charge sitting with his feet up on the table, either smoking or sleeping. After the
offence or arrest is brought before him, he picks up the phone and makes a call to the ‘other’ side,
who is invariably a powerful person, and asks him what is to be done regarding the matter….
The real class divide would become evident to anyone who enters the window-like gates of
any prison in the country. It is difficult to miss the profile of the inmates. In yet another session in
the same Mundakhana, we asked the young men the dates of their arrests. Many of them replied
rather oddly, ‘Nauva mahina, dasva din’ (ninth month, 10th day) or ‘aathva mahina’ (eighth month).
I snapped at one of them, ‘Is this the way to say the date? Why don’t you just say 10th September
and the year?’ There was unease and silence in the crowded barrack. Then one of the old hands
said, ‘Madam, they don’t know how to say the date correctly. Most of them are uneducated, (they)
have never been to school.’ The profile is so clear that the odd ones come as a surprise and stick out
among them, commanding special attention. A young man in the same Mundakhana, an under
trial for the murder of a servant of the house, spoke crisp English and left a gaggle of young law
interns traumatised for over a month (‘If this can happen to him…,’ and so on). In another jail
in Chanchalguda, Andhra Pradesh, a senior official from the judiciary casually interviews the
inmates. ‘What is your name and what are you here for?’ A young man, clean shaven and immaculately dressed, replies in a clear ringing urban-English-educated tone which makes the
official stop in his tracks and turn back to him. ‘What do you do?’ ‘I am a graduate, sir.’ ‘Look at
this! He speaks English. He is educated. I don’t think he would have done anything.’
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These are two instances, but the mindset pervades the system—educated, wealthy, ‘clean’ people
do not commit crimes. They deserve a better hearing. The benefit of the doubt must be given.
They cannot be made to undergo the rigours of this system. Perhaps not. But why does this proposition convert automatically into the one that holds that unkempt, inarticulate, uneducated
and poor people all commit crimes, that the treatment meted out to them by the system is just
what they had coming to them…?
Two policemen were trying to flag down vehicles at a busy highway intersection at a Delhi
suburb. From the corner of my eye, I noticed a small, thin man in tow, manacled at the wrist and
tied up with two thick ropes. As the title ‘Prem Shankar Shukla vs Delhi Administration’11 neoned
through my mind, the echo of Justice Krishna Iyer’s words—‘Insurance against escape does not
compulsorily require handcuffing…when there is no compulsive need to fetter a person’s limbs,
it is sadistic, capricious, despotic and demoralising to humble a man by manacling him’—made
me draw up to the side. The trio ran up to me and one of the policemen beamed at me through
the car window, obviously taken aback at this unlikely benefactor. Usually, it would be a public
transport vehicle or commercial trucks on which they hitch rides, claiming that they are not
given any money officially for the transport.
‘Where are you taking him?’ ‘To the jail. He has been remanded.’ ‘Is he a dangerous criminal?’
The policemen turned to look at the man as if they were seeing him for the first time. They
turned back to me uncertainly. ‘No,’ they said, unable to gauge the direction the conversation
was taking. ‘Then why have you tied him up? Do you know it is illegal to take a prisoner like
that?’ ‘We are just going under the orders of the CJM. We need to reach the jail before sundown,
otherwise they will not take him,’ said the other aggressively, as if that were answer enough to the
charge of illegally fettering their charge.
Meanwhile, the subject of the exchange, curiosity aroused, was looking from one to the other.
‘What’s your name and which thana?’ ‘Mange Ram,’ he replied, looking pleased at the courtesy.
As I gave the trio a short treatise on the law relating to handcuffing and transporting to prison and
cautioned them against any ill treatment or they would be answerable, the prisoner’s expression
changed from resigned apathy to a lively interest and he broke into a wide grin and nodded at me
with a delighted twinkle. The next day, the junior lawyer dispatched to the court to find out what
the man was being taken in for came back with the information that he had been apprehended
with two bottles of illicit liquor and charged under the Excise Act. Remanded for 14 days. Flat.
Bail amount: Rs 5,000 and two sureties of like amount. Flat. As I expostulated on the ridiculously
high bail for so minor an offence, the junior looked at me and said: ‘Madam, you would have
every terrorist released if you had your way.’
To anyone even a little circumspect, there would be an obvious distinction between a Mange
Ram who was found carrying a couple of bottles of hooch and a terrorist, drug pusher or professional killer. There is, indeed, a chasm laid down by the law itself. There are crimes in the statutes
Law and Life in the State of Nature
301
which merit only a very mild response. There are others which need dealing with a heavy hand.
The distinction, one would suppose, would be obvious to a reasonable person, and certainly to
those who are familiar (or supposed to be familiar, given their calling) with the law. Yet, because
of the inability of the accused to point this out, the incapability of the bar and the abdication of
the bench of its responsibility of applying the law correctly, the one-size-fits-all response is crushing
the system to making it vice-like for minor offenders and gaping with convenient holes for the
big fish through which to escape the net.
In profiling crime and criminals, the CJS has failed to imbibe the nuances of the law altogether.
The same message naturally goes out to society at large. It does not matter if you are apprehended
for a minor offence or a major one. Criminals are standardised by the Great Equalizer—the Law.
The result of the fettering of the diminutive Mange Ram, the parading through the streets and
market places of poor villagers and tribals tied up with ropes and chains is the unease which people
casually standing in a public place will feel when a policeman approaches. It can be felt in the stab
of fear on being flagged down by a police vehicle or a quickening of the pulse on hearing a police
vehicle passing through the neighbourhood. The fear arises not from the likelihood of a crime having
taken place, but from the presence of the police and what it might now do. This dark shadow that most
persons live under becomes a positively stifling mantle for the underprivileged. The urban migrants,
the pavement dwellers, the forest tribals all live under this preordained criminality.
ARREST HOW MADE!
‘Arrest how made’: The rather dry heading to a short and concise Section 46 of the Criminal
Procedure Code (CrPC), 1973, can be said to be, ironically, the flagship of provisions of the
CrPC so much not followed that the violations themselves have become acceptable as the law
itself. Section 46 states:
(1) In making an arrest the police officer or other person making the same shall actually touch
or confine the body of the person to be arrested, unless there be a submission to custody either
by word or action [Emphasis added].
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest,
such police officer or other person may use all means necessary to effect the arrest.
This is followed by the equally peremptory mandate in Section 49: ‘No unnecessary restraint’:
‘The person arrested shall not be subjected to more restraint than is necessary to prevent
his escape.’
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In its application, the arresting authorities seem to have eaten up chunks out of both the
sections and regurgitated a version of them that reads: ‘The body of the arrested person…shall
be subject to more restraint than is necessary to prevent his escape.’ A suitable amendment
which also seems to have been made is the addition of the word ‘always’ before the word ‘shall’ in
Section 49.
The mandate of Chapter V of the Code is that of restraining liberty strictly in accordance
with ‘the procedure established by law’. The procedure itself must necessarily pass the test of Article
14, that is, be free from arbitrariness. It is no argument after 1950, that the harshness of action has
been the by-product of a ‘colonial legal legacy’. Whatever doubt was possible has been obliterated
by the High Courts and the Supreme Court through a fortification of the protection of the law.
In particular, judgements such as Joginder Kumar vs State of U.P.12 and D.K. Basu vs State of
West Bengal13 sought to substantially plug in the lacunae which were responsible for the
illegalities.14
Over the years, hundreds of people have detailed arrests made either of themselves or of someone in their families, villages or towns. We have yet to come across any arrest that followed either
the letter or the spirit of the law. A variety of actions against people carry the generic term ‘arrest’.
People have been just ‘picked up’ and taken to the police station. Sometimes, they are let off
within a few hours or a few days after money is paid. People have been asked to ‘come to’ the
police station and detained there. They have been released after money has changed hands. People
have even disappeared after being taken to the police station. Money has invariably been paid. In
Haryana, an accused was kept first in one police station then another. After he was finally produced, he was again placed in police remand for a week. The family was paying money regularly
to the police station during his detention there to keep him from being further ‘remanded’—or,
to put it succinctly, beaten. This was done on the advice of the lawyer who was appearing for
him. The lawyer did not consider bringing before the Court the fact of his illegal detention for
over a week or the fact of violence in custody. When we sought to intervene, he cited ‘practical
considerations’ such as that the police would ‘spoil the case’ if such an action was taken before
the chargesheet was filed. This is a widespread phenomenon. The lawyer’s competence is judged
by his ability to minimise the violence and to negotiate the offence with the police. Raising
issues about the legality of arrests is looked upon by both the bar and the bench as an academic
exercise beyond the call of duty.
Police in states all over the country have continued to give a short shrift to the guidelines for
arrest issued by the Supreme Court. The said guidelines were issued in a case taken up for Suo
Motu hearing, based on a letter petition by a former Calcutta High Court Judge when he was a
lawyer, and were issued to plug the gaps in arrest procedure and ensure that arrests were recorded
correctly and promptly. In addition to the safeguards in the Cr.PC, the requirement for preparing an Arrest Memo, making a Physical Inspection memo, verification of the arrest in the
Law and Life in the State of Nature
303
presence of two independent witnesses, communicating the arrest to the next of kin and so on,
were introduced in this judgement. The guidelines were directed to be put up in every police
station in the country and failure to follow the guidelines would invite contempt of the
Supreme Court.
The one instance of a copybook arrest which came to our notice happened thus: After a legal
literacy workshop in a small town in Bihar, the D.K. Basu guidelines were reproduced verbatim
in a small local newspaper, giving it full-page coverage. A few days later, the police were trying to
arrest a local goon. The man reportedly climbed up to the terrace of his house and started reciting
the D.K. Basu guidelines on arrest: ‘Under what offence are you arresting me?’ While the police
may have been thinking of the response to the novelty of this query, the volleys came: ‘Have you
made an arrest memo? Are you ready to make a physical inspection memo? Make a panchnama
witnessing my arrest….’ The policemen were flummoxed enough to call for their senior, who
came and completed the formalities in the presence of a gaping crowd. The arrestee then
strode to the police station, undoubtedly assured of his safety from violence.
In villages or cities, there has been a uniform finding: arrests are almost always made by
bypassing procedure. So common is police violence that in common parlance, the word ‘remand’
has lost is meaning as ‘custody’.15 Hundreds of people all over the country, be it the north, the
northeast, the east, the west or the south of the country, when asked what the word ‘remand’ means,
have replied pat: ‘Beating by the police.’ These instances, rampant all over the country—in every
police station in every district—show up occasionally in the form of Khatri vs State of Bihar &
others16 or Neelabati Behera vs State of Orissa & others17 or State of M.P. vs S.S Trivedi,18 forming
the core of the annals of legal history. Some cases of prisoners blinded or people battered to death
come to the fore through the intervention of journalists, lawyers or civil society. The everyday
functioning of the police carries on with a happy disregard for any form of control, and the
everyday violence against a majority of the people goes on unchecked.
In 1994, the Supreme Court furiously indicted the police in State of M.P. vs S.S Trivedi19
for the death of Nathu Banjara, a person in police custody:
Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/
undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the
men in ‘Khaki’ to consider themselves to be above the law and sometimes even to become
law unto themselves. Unless stern measures are taken to check the malady, the foundations of
the criminal justice delivery system would be shaken and the civilization itself would risk the
consequence of heading towards perishing. The courts must, therefore, deal with such cases
in a realistic manner and with the sensitivity which they deserve; otherwise the common man
may lose faith in the judiciary itself, which will be a sad day.
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It did little to stop the torture and subsequent death of Buddhan Sabar20 in West Bengal in
1998. Buddhan was a tribal belonging to the Sabar community (a tribe which, though ‘denotified’
as a Criminal Tribe, continues to bear the flogging of the CJS). A civil rights organisation
revealed before the High Court a chain of cover-ups, forgery and lies in the story of Buddhan’s
custodial death.
Likewise, the mandate to record arrests and to inform the relatives of the arrested goes unheeded. Judicial officers over three states21 argued that the non-preparation of an Arrest Memo
does not vitiate an arrest. Section 167(2)(b)22 and the admonition in Khatri vs State of Bihar &
others23 notwithstanding, scores of prisoners all over the country are taken only up to the court
lock-up on the dates of their cases and never produced before the magistrate at all before their
remand is extended.
Apart from expressing the pain or fear suffered by people whose rights have been grossly
violated thus, there doesn’t seem to be much discomfort or disagreement with the methods used.
On the contrary, there is an absolute belief that being accosted, attacked, abused, summoned to
the police station, locked up and tortured form part of the procedure as allowed by the law. So
deeply entrenched is this belief that, at any workshop, there would always be polite resistance
to information imparted about the actual legal procedure. At a workshop with volunteers from
the relief camps shortly after the riots in Gujarat in 2002, a trainer who was explaining the
sections of the CrPC was stopped mid-flow by a young man who raised his hand to ask: ‘Aa amaare
desh nu kayde ni kalam chhe?’ (Are these sections from the law of our country?). In Jehangirpuri,
a resettlement colony in Delhi, after a prolonged session24 on the protective provisions in the
CrPC, a colleague was stopped in her tracks with ‘Yeh to aapki maangei hain…ab isska kanoon bhi
bataayiye’ (These are your demands. Now tell us the provisions of the law). Copies of the CrPC
often have to be passed around to assure people that these are, indeed, sections from our laws.
The preponderance of such responses, in fact, forced us to improve upon our methodology by
adding to the itinerary a session with a police official who would come and answer questions on
procedure and reinforce the provisions we had taught.
Even so, people almost seem to plead the cause of the correctness and legality of police violence. The empirical learning of the Indian citizen, uncluttered by learning of the letter of the
law, is clear: the police, by right and by definition, are meant to be violent. There are those who
have wanted to know ‘the difference between first degree, second degree and third degree and
under what circumstances each of them are applicable’. Others have prompted, between sessions,
‘Apradhi ko thoda to maarenge’ (Offenders have to be beaten a little). We have faced hundreds of
pairs of disbelieving eyes all over the country on our assertion that the police are not those who
can punish; that, in any case, no law in our country allows punishment by beating; that no offence
merits punishment unless duly proved by the procedure established by law; that the might of the
police and even the courts are bound by the letter of the law; and that the law itself is more or less
Law and Life in the State of Nature
305
written through an authorised procedure according to a Constitution which is, in turn, more or
less written in stone. Occasionally, there are some who profess to be more knowledgeable: ‘Madam
is right…police is not allowed to beat. Only in some serious offences they are allowed to beat
but only under the knees.’ We are quiet. Who are we—mere lawyers—to displace such faith in
the obvious fairness of the system!
It is this universal acceptability that needs attention as flashing danger signals of the endemic
nature of violations of the law and where they are leading to. It is not just the mass of people who
have never read the CrPC or the Constitution or have seen anything different in their lifetimes
who believe that a run-in with the police—be it arrest or interrogation—consists of roughing up,
dragging and hauling off amidst abuses and allegations. The trend which is worrying is that of
a majority of the implementers of the law who choose to argue on the side of force and violence
so commonly used, and offer explanations for ignoring the law. In dozens of interactions with
police officials and judges, the common refrain has been supportive of the use of restraint with
handcuffs and ropes; and the use of violence as something which is unnecessarily highlighted at
the cost of the poor police force, whose exposure to threat is nobody’s concern. The conditions laid
down by the law, such as preparation of arrest memos (D.K. Basu vs State of West Bengal) and the
physical verification of persons to be remanded (Section 167(2)(b)) are to them little more than
unnecessary nuisances adding to the burden of the system. People turning up with great trepidation
at various police stations at the mere brusque directive of some constable—’Saab ne thane bulaaya
hai’ (Sir has called you to the police station)—is another common phenomenon rarely noticed
as a violation of the law, which requires not only that a person may be summoned by an order in
writing in connection with an investigation, but also that all women, and males under 15 years of
age, need to be examined at their residences. Unrecorded and illegal summoning to police stations
usually meet the same fate—threats of cases being slapped on them, extortion, being kept in the
lock-up for hours or days, and the forced taking of signatures and thumb impressions on blank
sheets (a common ploy used only to terrorise people, as there is a specific embargo on signing
statements made to the police in the course of investigation).25
It is this kind of unrecorded summoning and incarceration that is responsible for widespread
violence within the local jurisdiction of almost every police station in the country. On the strength
of this terror, the police also help themselves to seemingly minor favours such as getting free
vegetables, fruits and other household conveniences. Common in tribal areas is the phenomenon
of locals being summoned and deployed for doing the menial jobs around the police stations.
There is a reluctance to debate the issue of violence against accused and offenders; such exchanges invariably turn into accusations: ‘So, do you want all prisoners to be let off free? Do you
know the pain of the victim’s family? What about the policemen who are killed by Naxalites?’ You
fight down the huge fatigue that rises up for the umpteenth time; take a deep breath and start the
journey of delving into the morass that is the psyche of Indian officialdom—all those channels of
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justice that have dwarfed themselves as well as the grandeur of a towering Constitutional framework to an unseen master.
MEANWHILE, WHAT OF THE VICTIM?
One would suppose that in this earnestness of the system to control crime by all means possible—
mostly through noble efforts that often fall well outside the tight confines of the law—the victims
of crime would be the system’s prime concern and would have little to cry about. Their grief and
angst would be assuaged by the response of the system. Their perpetrators would be brought to
book and the ends of justice met. The truth is that, in the process of law, the response to the
victims of crimes is matched horror story for horror story, right from suffering the crime to the
outcome of the matter.
In the morass of the State’s understanding of its own function, the first hurdle that a victim
of crime has to get over is the reluctance of the police to accept the action complained of as
an offence at all. In spite of the misgivings one may have about the colonial or unreasonable
nature of some of the offences listed, the Indian Penal Code (IPC), 1860 is an excellent docket
of the wrongs that might be done to people in the normal social environment. While the earlier
chapters amount more or less to stentorian threats to citizens—as ‘Of offences against the state’
and ‘Of contempt of the lawful authority of public servants’—the IPC carries on to becoming a
friend of the citizen—’Of offences relating to weights and measures’, ‘Of offences relating to public
health, safety, convenience, decency and morals’, ‘Of offences affecting the human body’, ‘Of the
causing of miscarriage, of injuries to unborn children, of the exposure of infants and of the concealment of births’, and so on.
The first thing that interacting with the common Indian citizen reveals is that the perception
of a wrong as an ‘offence’ is very low. People continue to suffer many injuries and wrongs and
violent and offensive treatment which would be intolerable in any other society. For example,
Dalits in remote villages would not convert the horrendous crimes against them such as fouling of
their water, stopping the use of public pathways and other behaviours either into offences under
the IPC or the SC/ST Act.26 The information that ‘gharelu maar-peet’27 (violence in the home)
is a serious offence is met with some degree of discomfort even among women and would not
easily convert into offences like criminal intimidation, cruelty, hurt, and so on, under the IPC.
A group of young volunteers in Gujarat were amazed to learn that the dumping of industrial
waste in residential localities amounted to several offences under different laws. In Karvi, a small
town in Uttar Pradesh, women who were bonded labourers, along with their entire families, were
Law and Life in the State of Nature
307
mystified at our reading out from simplified legal manuals about the punishment that the offence of
keeping bonded labour entailed. To them, it was their own situation: the possibility of redemption
from any quarter, least of all the governmental structures around them, was furthest from
their minds.
As these very citizens grow into policemen manning the network of police stations all over their
country, they seem to find it hard to rid themselves of this ‘innocence’. The lack of response to
citizens who, in spite of their dread of the police, turn up to report offences in the pathetic hope
of help is not a secret any more. The recent excavation of the gruesome event in Nithari28—a rural
pocket of migrants who are employed in a township with a mixed population of the very affluent,
the service class, businessmen and industrialists—is a case in point. Over 70 children of the Nithari
residents had gone missing over the years and the police reportedly filed only two First Information Reports (FIR—referred to by all and sundry, for some reason, as FRI!). Over the years, a
majority of people have bemoaned the fact that the police just do not register offences.
The Nithari incident, in fact, is the quintessence of all the police responses that one has been
hearing from all over the country. The disappearance of a young woman was met with, ‘You
have a young and beautiful wife, she must have run away with someone.’ These deep-seated
reservations about ‘young and beautiful women’ translate into a refusal to acknowledge offences
ranging from violence in the home, harassment at the workplace, dowry demands and rape. Mostly,
the complainant only need be a ‘woman’ for the reservations to surface. Nothing seems to work
for the female complainant or victim: if she looks good, she is suspect; if she doesn’t look so good,
all the more reason to not pay attention. If the rape victim happens to be a girl who is out at an
odd hour of the night, the focus quickly shifts to the provocation afforded by the dress, behaviour
and lifestyle of the ‘modern woman’. There is unease about the very fact that a woman has stepped
out of her designated place to claim a right just like anybody else of any import—namely, men.
The second category of people who just cannot get their reports converted into an FIR
are the poor and the uneducated. The Nithari residents were both. The third rampant reason
is that the police themselves are either part of the crime or want to protect the accused because
they are financially, politically or otherwise influential. The developments in Nithari seem to
strongly suggest such connivance.
As with arrests, many actions go by the name ‘FIR’. Most people in India are still culturally
inclined towards the Oral Tradition. They simply go to the police station and relate their woes and
come away, expecting some action thereafter. Although the law takes care of that at the outset, then
begins a cycle of visits to the station. And with no results. People who have evolved somewhat get
the police to ‘write down’ their complaint. The most informed will write down their story on a
piece of paper and hand it to the police. Among these, there is a further gradation: those who keep
a copy of the complaint and those who insist on the copy being stamped. Hardly anyone (and this
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covers the rural and the urban, the illiterate and the literate, professionals, farmers and construction workers) comes away having had their reports registered on the basis of their information,
least of all with a copy of the FIR, as mandated by Section 154 CrPC:
(1) Every information relating to the commission of a cognizable offence, if given orally to an
officer in charge of a police station, shall be reduced in writing by him or under his direction,
and be read over to the informant and every such information, whether given in writing or
reduced to writing as aforesaid, shall be signed by the person giving it, and the substance
thereof shall be entered in a book to be kept by such officer in such form as the state government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free
of cost, to the informant.
A subsection (3) further details the remedy for a person faced with a refusal to file an FIR,
which at first cut looks fairly simple—provided you are able to read, can afford postage and know
the address of the superintendent of police (SP): send the substance of the complaint to the SP
by post. The process will then be dealt with by him. Ordinarily, this should be deterrent enough
to keep the police’s apathy at bay. Yet, the police continue to refuse, safe in the knowledge that
the only procedure that the Indian citizen knows is that of ‘meeting higher officials’; that it takes
a lot of gumption and money to be able to go to the higher officials; that the ‘higher officials’ the
odd person will go to will be the wrong ones who cannot process a cognisable offence; and that,
in any case, the wait for a higher official is like waiting for Godot. In this rigmarole, many small
and big grievances remain simmering in the lives of common people, waiting to erupt either in
personal vendettas or, given the chance, even in violence unleashed on totally unrelated persons.
It aids the stratification of negative attitudes and a cynicism and disengagement with all institutions which represent the State.
Yet another twist of the process is the response of the police that they will first find out whether
the incident actually happened before making a formal report. The law is unequivocal about a
report being lodged upon information being received and not upon an investigation. That an
FIR is a condition precedent to the exercising of any power of investigation does not seem to
have found acceptance among the police cadres. The policemen who cite ‘wasting time over false
and frivolous cases’ which do not merit action and, therefore, the non-filing of an FIR need only
read Section 157(1)(b), which says that:
…if it appears to the officer in charge of the police station that there is no sufficient ground for
entering on an investigation, he shall not investigate the case.
Law and Life in the State of Nature
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(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the
officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that subsection,29 and, in the case mentioned in clause (b)
of the said proviso, the officer shall also forthwith notify to the informant, if any, in such
manner as may be prescribed by the state government, the fact that he will not investigate
the case or cause it to be investigated.
Many turn up, not so much in the hope of help but in the hope of instant reprisal against
those with whom they have an issue. The image of the police brings them the confidence that
when money changes hands, their side of the story is assured. If people often complain that no
‘action’ has been taken even in cases where the process is going further as per the law, it is to be
blamed only on the police. People are only responding to the ‘action’ they know and presume to
be correct—that of picking up and beating people for alleged offences.
On the other hand, those who have actually had serious crimes committed against them often
have to live with the trauma of spending their days cheek-by-jowl with offenders who cannot be
‘found’ and arrested. Again, in spite of the CrPC laying down detailed processes for apprehending
persons—even those who are absconding30—people bemoan the fact that the persons roams
free and even taunt and threaten them. The Judiciary, on its part, expresses helplessness with
regard to serving summons and even with non-bailable warrants not being executed both for
the accused as well as for witnesses.
THIRD PARTY RISK
A serious issue identified for prosecutions falling through, for tardy trials and for justice defeated
are the lacunae in the witnessing system. A strong civil society would ensure that crimes and
criminals are duly reported and that the State is assisted in its job of keeping its citizens safe.
However, the fear created by its own actions and the callousness of its response to well-intentioned
citizens results in nurturing in each person the selfishness that Hobbes wrote of. If people will
not step in and intervene when a fellow citizen is suffering an offence, it is not shocking, however
much one may cite apathy as the worst bane of modern life. Every citizen who walks away from
a situation which needed his help is haunted by the shame and guilt of this disregard. For those
who respond, giving in to their better impulses or out of sheer daredevilry, the fear and frustration of the aftermath adequately kills such finer instincts not only in them but in onlookers as
well. Witnesses, who ought to get the comfort and respect that a friend and well-wisher deserves,
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are troubled by constant summons to police stations or courts; they are threatened by interested
parties, the police and court staff and left vulnerable to violence and inducement.
There can be no better comment on the status and situation of witnesses than the fact that the
Supreme Court had to issue directives ensuring that witnesses were treated well. The hue and cry
about witness protection in cases like Jessica Lal, Katara and Priyadarshini Mattoo31 has been too
late and too little. Zahira Sheikh’s conviction for perjury32 seems to have appeased the conscience
of the legal system sufficiently. The neglect of ordinary people as witnesses has already manifested
itself as the stranglehold of the network of weeds that are the ‘professional witnesses’ in courts
all over the country. Judges manning the lower courts have, again, expressed their helplessness
in checking false witnesses,33 and their inability to curb the high incidence of witnesses turning
‘hostile’. For those who follow up cases doggedly and try to do it within the right side of the law, it
means hours and hours of coaxing people to appear and tell the truth in support of a higher ideal.
Very few ordinary people are willing to carry a cross so obviously abandoned by everyone else.
A LEGAL PRACTITIONER OF HIS CHOICE
Another laudable Constitutional directive that has gone the way of many others is the right of an
accused to have legal representation: ‘No person…shall…be denied the right to consult, and to
be defended by, a legal professional of his choice.34
The matter of ‘choice’ here is dubious, as most people are not in a position to exercise an informed choice. ‘Good’ lawyers are expensive and entail a financial burden on the family which
they strive hard to meet, often unsuccessfully. Many litigants have reported taking loans, or selling
or mortgaging property to meet legal expenses. Even so, many have reported that even a small difference or delay in paying the fees causes lawyers to not appear at all or to not move bail on their
behalf, etc. On their part, lawyers say that it is a matter of their livelihood and that unless they
are paid, their services should not be expected. However, having observed lawyers in action, it is
evident that the payment is of lesser significance than their actual capacity to represent the case.
Old Father William gave credit to the practice of law in his youth for the ‘muscular strength’ of
his jaw.35 That the same can be said of the majority of lawyers who profess to practice law, whether
for the prosecution or for the defence, is doubtful, for both sides seem to be failing miserably in
their bids to get justice. While many poor accused do not have the privilege of a lawyer in spite of
the constitutional mandate of free legal aid for the indigent underscored by the Supreme Court
as far back as 1979 in the Hussainara Khatoon36 cases, a statutory right under Section 304 of the
CrPC, expanded by the Legal Services Authority Act, 1994, the ones who are hired for a fee very
often fail to pursue the cases diligently. A host of unethical practices have been reported by litigants
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311
in every court. Predictably, poor litigants say that the lawyers charge too high a fee, do not turn up
for the hearings and ‘do not speak up in court’. In general, it is also seen that lawyers are not aware
of provisions of the law helpful to their case/s, do not press important issues and are vulnerable to
influence from the contending side.
The picture of sleaze and sloth that is conjured of lawyers in the public mind is verified by
the public’s contact with them. The lack of monitoring of legal aid lawyers leads to graft even in
that system. In 1995, during the legal literacy workshops which were commissioned by then IG
of Tihar Central Jail, Dr Kiran Bedi,37 the prisoners in the women’s ward of Tihar Jail reported
that the legal aid lawyer who visited the jail would give them her card and ask them to tell their
families to see her in her chamber, and would then take up their cases as a private lawyer. In the
absence of provisions of reporting and accountability of these legal aid lawyers, this is undoubtedly
a widespread phenomenon all over the country—provided, of course, that there are legal aid
lawyers going to the jails at all. The lofty ideals sought to be attained through the amendment in
the Bar Council of India Rules say:38
Every advocate shall, in the practice of the profession of law bear in mind that anyone genuinely
in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or
adequately and that within the limits of an advocate’s economic condition, free legal assistance
to the indigent and oppressed is one of the highest obligations an advocate owes to society.
However, not only is this not popular in the bar rooms, it is also difficult to achieve, given the
economic condition of most of the members of the profession.
Dismal stories may not touch the life of every common person, for each person presumes
himself to be safe and secure in the knowledge that these are matters that belong to the underbelly
of the society we live in. Yet, it is but in a moment’s span that the system can come knocking at one’s
doorstep. And it is then that one realises that each citizen equally treads the rotten floorboards which
can collapse and throw one unceremoniously into the cauldron of a system which runs in the name
of law and order; maintenance of peace; safety of the citizens, protection of the vulnerable….
The extent of the rot hardly needs to be substantiated by hard evidence—it is written on every
wall in the country. The reasons for this state of affairs are also equally well known by now. Time
and again, a plethora of studies and resulting theses have diagnosed the malady. Law commissions
have prescribed in detail what needs to be done. Police commissions have recommended changes
in the systems that would cleanse it inside out. Now and then, civil society ups and files public
interest petitions and holds seminars and protest marches. And, yet, the undertow seems to pull
back all the forward moves. In order to refurbish and strengthen the rotten floorboards, a colossal
effort requires entering afresh the realm of the civil contract and an insistence, from all quarters,
on its performance.
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NOTES & REFERENCES
1. Hobbes, Thomas. 1651. Leviathan, or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil,
edited by C.B. MacPherson. 1986. New York: Penguin Books, referring to the omnipotence of the State.
2. From Hobbes, op. cit.
3. This interview took place in a discussion with a group of young undertrials in Tihar Jail in 2006, when MARG
conducted legal literacy sessions along with the Delhi Legal Services Authority.
4. ‘Munda’ is colloquial for young boy and ‘khana’ is an area earmarked for an activity or persons.
5. The Narcotic Drugs and Psychotropic Substances Act.
6. A district jail in Madhya Pradesh that houses offenders from the surrounding areas of the poppy belt.
7. Neemuch, Mandsaur and Ratlam.
8. Section 25 of the Arms Act, 1959, read with Rule 3 and Category V, Schedule I.
9. A law which sets a different procedure for ‘children in conflict with the law’, that is, offenders under 18 years of age.
10. Section 304 of the Indian Penal Code 1860, sets out the punishment for ‘culpable homicide not amounting to
murder’.
11. AIR 1980 SC 1535.
12. 1994 4 SCC 260.
13. 1997 1 SCC 416.
14. Some of the directives have been added to the statute by amendments to the Code of Criminal Procedure, 1973,
in 2006.
15. Under Section 167 of the CrPC, an arrested person may be sent either to police custody for investigation purposes
or to judicial custody.
16. AIR 1981 SC 928.
17. JT 1993(2) 503.
18. (1994) 4 SCC 262.
19. Ibid.
20. Paschim Banga Kheria Sabar Kalyan Samiti vs State of West Bengal W.P. No. 3715 of 1998.
21. In a series of symposia on criminal procedure and human rights in West Bengal, Orissa and Andhra Pradesh, held
from 2001 through 2005, in association with Amnesty International and the state judiciary. In Andhra Pradesh,
NALSAR Law University was also a key partner.
22. ‘No Magistrate shall authorize the detention in any custody under this section unless the accused is produced
before him.’
23. AIR 1981 SC 928.
24. Legal literacy sessions were held with a group of adolescents in Delhi under a programme run by MARG for Action
India a Delhi-based NGO, in 2005.
25. Section 162, CrPC.
26. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
27. ‘Humaare Kaanoon’ (Our Laws), a series of books produced by MARG for legal literacy.
28. Headlines in national and international news in early 2007.
29. Section 157(1) mandates that upon information received, the officer in charge of a police station himself or through
a subordinate shall conduct a spot investigation and, if necessary, take measures for the discovery and arrest of the
offender.
30. Chapter VI of the Code of Criminal Procedure.
31. ‘High-profile’ murders involving politicians’ families.
Law and Life in the State of Nature
313
32. Zahira Sheikh lost almost her entire family in the communal riots in Gujarat in 2002 when the ‘Best Bakery’ was
burnt down by mobs. She later retracted her version of the attack and was hauled up for perjury or lying on oath.
33. In a series of symposia on criminal procedure and human rights in West Bengal, Orissa and Andhra Pradesh, held
from 2001 through 2005, in association with Amnesty International and the state judiciary. In Andhra Pradesh,
NALSAR Law University was also a key partner.
34. Article 22(1), Constitution of India.
35. ‘You Are Old, Father William’, from Alice in Wonderland by Lewis Carroll.
36. A bunch of letters and petitions taken up in Writ Petition 57 of 1979. Hussainara Khatoon vs State of Bihar,
AIR 1979 SC 1360.
37. The workshops are mentioned in Kiran Bedi’s book, I Dare!
38. Standards of professional conduct and etiquette, Rule 46, under Section 49(1)(c) of the Bar Council of India Act.
13
Revisiting Impunity and Criminality: Of Corruption,
Collusion, Consequences and Victims
Vijay K. Nagaraj
Impunity is a pervasive feature of the Indian legal system, and this narrative concerns itself
with the construction of crime, criminality and impunity in two vastly different contexts—
corruption in rural development works and the Bhopal gas tragedy. And, like criminality and
impunity, this essay too is a fragmented and disjointed narrative, a story of many distinct and yet
connected pieces of knowledge and experience. It seeks to explore, on the one hand, the complex
links between the constructions of criminality, impunity and redress within and by the law as well
as beyond the law. On the other hand, an attempt has also been made to understand the interplay
between intent, consequences and knowledge in the context of juridical and political practice
and how they determine redress and the eventual construction of impunity.
The two contexts, corruption in rural development and the Bhopal gas tragedy, make for
some interesting contrasts and similarities. While the former is understood as a chronic, everyday
routine experience in both the theory and practice of development, the latter is associated with
the ‘perfect’ disaster—a gruesome and dramatic aberration from the ordinary. At the same time,
however, there exist the more sensational forms of corruption—scams. And how can one forget
the chronic, acute and everyday experience of the physical and emotional pain of the survivors
of the Bhopal gas tragedy, which has assumed a frightening normality? Also linking these two
worlds is the discourse of risk—the risk to life and social and environmental well-being emanating
from hazardous technology, and the risk of impoverishment from the systematic diversion of public
resources to serve private interests.
INTENT, CONSEQUENCES AND KNOWLEDGE
Consequentiality, crime and impunity acquire different but yet not entirely unrelated dimensions
in the vastly differing contexts of rural development and the Bhopal gas tragedy, wherein impunity
Revisiting Impunity and Criminality
315
and lack of accountability are constructed in the fragmenting and denial of the relationship
between intent, consequences and knowledge.
According to Jenkins and Goetz, the ‘complex impact of corruption on the poor’ is seen
‘operating along three dimensions of citizenship’, namely (a) securing state resources; (b)
achieving market gains; and (c) participation in civil and political society.1 According to them,
‘the skimming of state resources at local levels tends further to enrich those groups in rural society
responsible for denying social and economic opportunity to the poor in the first place […].
Their collective prestige and influence, combined with the collusive relationships they forge
with state officials’ protects and sustains them even while leaving the poor with little option
but to accept ‘networks of corruption—spanning the domains of developmental activity, market
transaction and organised politics’.2
‘A well-worked-out system of graft and percentages, on the bureaucratic side and the exchange
of votes for patronage…and protection on the political side’3 has two significant consequences.
First, it not only achieves but actually provides strong incentives to exclude the poor from
governance. In this sense, corruption in development mirrors crime as relations of inequality—
‘the expression of some agency’s energy to make a difference on others, and it is the exclusion of
those others, who in the instant are rendered powerless to maintain or express their humanity’.4
It is however important to note that the exclusion we referred to earlier is not always literal,
at least not in the case of everyone, but is the price that has to be paid for not consenting to be
party to the system, for instance paying commission for allotment of a house or paying a ‘cut’
to secure a loan. In other words, the powerless, or those who bear no social capital, are forced
to render themselves complicit or simply be altogether ignored. Corruption and abuse of
office, especially in the context of development, are, therefore, also ‘crimes of domination’ and
are, by nature, ‘symbolic violence—violence that is exercised on a social agent with his or her
complicity’.5
Hence, when a rural daily-wage worker is actually paid less than the wage that is his rightful due
through the falsification of muster rolls, or when a poor widow is able to secure only a very small
part of the compensation amount awarded for her husband’s death in an industrial disaster only
because she had to part with a substantial part of it in bribery, it undermines both their very ability
to lead a dignified existence and their quality of life. Corruption in the context of development,
in juridical terms, at least, is widely understood in almost the same terms as corruption in other
contexts—as a breach of trust in terms of a statutory or even, in some rare cases, a social contract.
In other words, it focuses on the act itself.
The discourse of the Mazdoor Kisan Shakti Sangathan (MKSS), a mass-based people’s organisation working in south-central Rajasthan, seeks to draw attention to the diverse consequences
of corruption that have a bearing on the person, the family, household and the community;
the State–citizen relationship; and the citizen–community relationship. The most significant
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Vijay K. Nagaraj
contribution of the MKSS has been to render corruption in the context of development as a
crime against persons (or the community). That is, that every act of corruption in the context of
development or social welfare directly erodes or undermines the ability of a particular individual
or group of individuals to secure specific economic, social, political and cultural human rights
and/or needs. In other words, there are victims of corruption, not just consequences.
Consider, for instance, the ‘enforced disappearance’ of a large number of development works.
When a canal is shown to be completed in all respects on paper, whereas in reality there does not
even exist a hole in the ground, it is hard to imagine that all those involved in the act have no
knowledge of the consequences of their action beyond the fact of its obvious illegality. The very
fact that a development work, in this instance the canal, is approved as an object of legitimate
public expenditure is signal, and in some senses even the ultimate recognition of its public need.
And insofar as the canal is meant to satisfy a specific set of needs and rights of a particular community, its ‘disappearance’ must constitute a (mis)appropriation and denial of the legitimate
entitlements of that community, with definitive negative consequences. In other words, it is
material to ask whether or not such acts of corruption embody two types of knowledge: (a) that
of its manifest illegality, and (b) that of its consequence, of violating, or at least threatening, basic
human rights or publicly acknowledged development needs.
The Bhopal gas disaster, of course, witnessed a very close encounter of a different kind with the
question of intent, consequences and knowledge. On the night of 2 December 1984, more than
35 tonnes of toxic gases leaked from a pesticide plant in Bhopal owned by the US-based
multinational, the Union Carbide Corporation (UCC)’s Indian affiliate, Union Carbide India
Limited (UCIL). The gases that leaked consisted mainly of at least 24 tonnes of poisonous
Methyl Isocyanate (MIC) and other reaction products, possibly including toxins such as hydrogen
cyanide, nitrous oxide and carbon monoxide.6 More than 5,00,000 people were exposed to toxic
chemicals during the catastrophic leak. In the next two to three days, more than 7,000 people died
and many more were injured. The poisons also claimed the lives of thousands of animals. Over
the past 20 years, at least 15,000 more people have died from illnesses related to exposure to the
gas. Today, more than 1,00,000 people continue to suffer from chronic and debilitating illnesses
for which treatment has proved ineffective.7
The UCC plant in Bhopal not only used MIC, which was well known to be ‘extremely
hazardous,’8 but also stored it in large quantities. As early as 1982, a UCC safety audit had
highlighted many major and minor safety concerns regarding the Bhopal plant. There had been a
number of accidents, including at least one death, at the plant prior to the December 1984 leak,
and local media and the workers’ union had repeatedly raised safety concerns in public. A question
with regard to the danger from the plant was even asked on the floor of the Madhya Pradesh State
Assembly. Months before the December 1984 disaster, the UCC was warned of the possibility
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of a runaway reaction (similar to the one that caused the eventual leak in Bhopal) occurring at
the MIC plant in West Virginia in the USA. To top it all, on the night of the fateful gas leak,
crucial safety systems—including the cooling system, the liquid nitrogen pressure controls and the
vent gas scrubber—were disabled or not functional.9
On the 3 December, the Station House Officer of the Hanumanganj Police Station filed a
suo moto FIR under Section 304A (causing death by negligence and not amounting to culpable
homicide), IPC 1860. The 12 accused were:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
Warren Anderson, Chairman, UCC.
Keshub Mahindra, Chairman, UCIL.
V.P. Gokhale, Managing Director, UCIL.
Kishore Kamdar, Vice President and in-charge of AP Division of UCIL.
J. Mukund, Works Manager of the Bhopal Plant.
R.B. Roy Choudhary, Assistant Works Manager, AP Division, UCIL at Bhopal.
S.P. Choudhary, Production Manager of the Bhopal Plant.
K.V. Shetty, Plant Superintendent of the Bhopal Plant.
S.I. Qureshi, Production Assistant at the Bhopal Plant.
Union Carbide Corporation (UCC).
Union Carbide (Eastern) Inc., Hong Kong (UCE).
Union Carbide India Ltd. (UCIL).
On registration of the crime, those accused who were residents of Bhopal (accused 5–9) were
arrested. Accused 1, 2 and 3 were arrested on 7 December 1984, but were later released on bail:
Warren Anderson was personally escorted out of the city by the then Chief Minister and flown
out of the country under the watchful eyes of the then Prime Minister, Rajiv Gandhi. Succumbing
to intense public pressure, the government handed over the case to the Central Bureau of Investigation (CBI) on 6 December 1984. Almost exactly three years later, the CBI filed a chargesheet
in the Court of the Chief Judicial Magistrate (CJM), Bhopal. In early 1989, even before charges
had been framed, the Supreme Court’s settlement order quashed all criminal proceedings,
and it was only after the October 1991 Review Order that the criminal proceedings began.
On 8 April 1993, the Sessions Judge, Bhopal, framed charges against the Indian accused under
Sections 304 Part II, 324, 326 and 429 read with 35—culpable homicide not amounting to
murder, voluntarily causing grievous hurt, mischief by killing animals and the commission of such
offences with criminal intention or knowledge. The Indian accused then unsuccessfully moved the
High Court of Madhya Pradesh with a plea to quash the case on the grounds that prosecution’s
case did not prima facie support the charges.10 Eventually, they filed Special Leave Petitions (SLP)
in the Supreme Court seeking the quashing of charges.
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On 13 September 1996, the Supreme Court pronounced its verdict on the SLP, concluding
that there was not even prima facie material to frame a charge of culpable homicide. The charges
were reframed by the Supreme Court, and Section 304A IPC (‘causing death by negligence’) was
held to apply, according to which the most the accused could be charged with was for having
committed a ‘rash or negligent act not amounting to culpable homicide’.11 Indeed, the Supreme
Court all but quashed the charges altogether, holding that Section 304A applied only because
there was material on record that suggested serious operational failures and defects in design and
structure, and so on.
The Supreme Court dismissed as ‘specious’ the plea that the ‘said act of the accused amounted
to culpable homicide only because the operation of the plant on that night ultimately resulted
in the deaths of a number of human beings and cattle’. The Supreme Court showed favour to the
defendants’ argument that the leak ‘was an act of god for which no human being was responsible’.
It was an extraordinary assertion by the Supreme Court which, in one stroke, erased the fact that
people and animals, in their thousands, did not simply die but were actually killed by a deadly
toxin. The apex court failed, or rather refused, to see the simple but far-reaching difference between
being ‘dead’ and being ‘killed’. Impunity here arose from the Supreme Court’s turning a blind eye
to the most probable, if not the most obvious, link between knowledge of the hazard and the risk
it entailed: that since the accused were aware that MIC was ultra-toxic and that a range of safety
systems were not in operation, it must be presumed that they knew that running the plant in that
condition posed a significant danger to the safety of both workers and the communities living in
the vicinity of the plant.
As Usha Ramanathan summed it up:
It is difficult to see what would constitute ‘knowledge’ in the opinion of the court. Design defects,
lapses in the operation of the plant, prior incidents of gas leaks and injured workmen, warning
by the workmen to the management…. Yet, the court was willing to attribute an absolving
innocence to the Indian corporation (the non-Indian parties were still absconding) and its
agents. This drastic dilution of charge has, it hardly needs to be said, reconstituted perceptions
of responsibility of corporations and their agents. The relationship between foreseeability
and ‘knowledge’ was, for instance, not even considered.12
IMPUNITY AND THE PROMISE OF THE LAW
In March 1985, the Government of India enacted The Bhopal Gas Leak Disaster (Processing
of Claims) Act. By virtue of this legislation, the Government of India arrogated to itself all power to
exclusively represent anyone who may be entitled to make a claim for compensation in connection
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with the Bhopal gas tragedy. The acquisition by the Government of India of the role of parens
patriae was ostensibly spurred by its concern, captured in the preamble to the Act, to ensure that
‘claims arising out of, or connected with, the Bhopal gas leak disaster are dealt with speedily,
effectively, equitably and to the best advantage of the claimants’. However, as a cursory reading
of a part of Section 3 of the Act reveals, the writing was already on the wall.
3. Power of Central Government to represent claimants—(1) Subject to the other provision of
this Act, the Central Government shall, and shall have the exclusive right to, represent, and
act in place of (whether within or outside India) every person who has made, or is entitled
to make, a claim for all purposes connected with such claim in the same manner and to the
same effect as such person.
(2) In particular and without prejudice to the generality of the provisions of sub-section (1),
the purposes referred to therein include–
(a) institution of any suit or other proceeding in or before any court or other authority
(whether within or outside India) or withdrawal of any such suit or other proceeding,
and
(b) entering into a compromise.
To begin with, two points with respect to the Claims Act merit particular consideration at this
stage. The first is that through this Act, the Government of India rendered unto itself not only
the exclusive right to represent the victims but also the power to ‘act in place’ of anyone, victim
or otherwise, who had or was entitled to or could make a claim in connection with any aspect of
the gas tragedy. In other words, the displacement of the victims was complete. The Claims Act
stripped the survivors of the Bhopal disaster of all agency, reducing them, at best, to witnesses.
Second, and arguably perhaps more important, was the question of how and in what manner
the Government of India could ‘act in place of ’ the victims. It could either institute or withdraw
a suit or legal proceeding and could also enter into a compromise. Barely three months after the
catastrophic gas leak, even before the full import and scale of the disaster was far from clear, the
Government of India sought and secured a Parliamentary mandate for ‘a compromise’! Indeed,
the haste was such that even prior to the Parliament’s convening, the Government of India had
promulgated a Presidential Ordinance to the same effect as the Act that repealed and replaced
the Ordinance a few weeks later. The Claims Act left the door wide open not for a settlement but
for ‘compromise’, that is, impunity.
The most significant effects of the Claims Act was that it left the victims with no choice but
to accept the Government of India as its primary and, for all practical purposes, sole advocate.
With one deft legislative manoeuvre, the Government of India not only secured for itself absolute
control over the destiny of victims’ struggle to bring UCC and UCIL to justice, but also ensured
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that it could deflect any and all responsibility for the leak itself. The Claims Act ensured that
from being one of the parties that could potentially be held responsible for what happened prior
to and on the night of 3–4 December 1984 in Bhopal, the Government of India became the
primary advocate of the victims. This paved the way for the eventual settlement and the total and
absolute impunity that both UCC and the State came to enjoy.
Ironically, the recurrent theme in the justification of the Claims Act, and, for that matter, in
almost every decisive stage of the Bhopal litigation, was the fact that a very large proportion of
the victims and survivors of Bhopal were poor, illiterate and otherwise socially disadvantaged,
and therefore incapable of defending themselves against a large and powerful corporation like
UCC. It is interesting to note that UCC has used much the same arguments in courts in both
New York and Bhopal—in case of the former, in support of its claim that the US was not an
appropriate forum (forum non-conviens); in case of the latter, to discredit victims’ affidavits.
UCC argued before the US District Court in New York:
Indeed, the practical impossibility for American courts and juries, imbued with US cultural
values, living standards and expectations, to determine living standards for people living in the
slums or ‘hutments’ surrounding the UCIL, Bhopal, India, by itself confirms that the Indian
forum is overwhelmingly the most appropriate. Such abject poverty and the vastly different
values, standards and expectations which accompany it are commonplace in India and the
third world. They are incomprehensible to Americans living in the US.13
Back in Bhopal, UCC’s lawyers claimed that ‘the plaintiffs are illiterate and do not understand
the contents of the affidavits on which they have placed their thumbprints. Therefore…the
complainants must be thrown out.’14
It was on 14 February 1989 that the Government of India, with the active support and
endorsement of the Supreme Court, finally scripted the ‘compromise’ with UCC/UCIL. In return
for the payment of US$ 470 million to the Union of India, the Supreme Court ruled that all civil
proceedings ‘shall stand concluded in terms of the settlement, and all criminal proceedings related
to and arising out of the disaster shall stand quashed wherever they may be pending’. And just in
case anyone was left in doubt that UCC and UCIL may have been held in any way responsible
or liable, the Supreme Court made it clear in its order that the payment was to be made to the
‘Union of India as claimant and for the benefit of all victims of the Bhopal Gas Disaster…and
not as fines, penalties or punitive damages’.15
It did not matter that even at that point, five years after the leak, the exact number of those
dead, dying and otherwise variously affected were not fully enumerated; it did not matter that the
exact scale of the damages and the costs of clean-up, recovery, etc., were still yet to be calculated; it
did not even matter that in its initial submissions before the Bhopal court, the Government of India
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had spoken about damages and costs to the extent of US$ 3 billion; and, last but not least, it did
not even matter that the victims had already filed intervention applications in the matter asking
for them to be heard prior to any settlement being arrived at and endorsed by the Court.
Justifying the settlement of 1989, the Supreme Court maintained that its ‘judicial and humane’
duty to ensure immediate relief to survivors and victims outstripped the importance of settling
complex questions of law and liability. Needless to say, the Court was ‘moved’ by the sufferings
the poverty-stricken victims and survivors of the gas leak had to endure. Ironically, however, the
Supreme Court facilitated this settlement even when it was hearing an appeal by UCC against
an order by the Madhya Pradesh High Court ordering it to pay interim relief to the very same
suffering victims. The former, however, went much further and not only opted for a full and
final settlement but also, in an unprecedented move, actually quashed all criminal proceedings
against UCC and UCIL. What ‘judicial and humane’ duties towards the victims of Bhopal the
Supreme Court was seeking to fulfil in quashing all criminal charges was best left to it to explain
and defend. Not surprisingly, it was forced to see the error of its ways, in this specific aspect of the
settlement order at least, and was forced to reinstate criminal proceedings in October 1991.
The settlement which the Supreme Court approved on 14–15 February 1989 is proving to
be more severely flawed with every passing day. There now appears no possible justification for
the order made on those two fateful dates. Every assumption on which the orders were based
was wrong both on facts and in law. Notwithstanding the defiant posture of the Supreme Court
in its review petition that its powers under Article 142 justified its approval of the settlement,
which foreclosed all present and future civil and criminal claims, the Court itself has had to reject
the judgement in the review proceedings as an applicable precedent for future cases. The wrong
remains an irremediable wrong.16
The most visible and overwhelming sign of the impunity of UCC is that it is yet to tell the
world the exact composition of the deadly gases that leaked on that fateful December night.
A UCC investigation report in March 1985 concluded that approximately 24,500 kg of MIC
leaked along with 11,800 kg of reaction products.17 To this day, UCC has got away without having
to name what exactly these reaction products were, thereby preventing the development of any
effective treatment protocol and prolonging the agony and sufferings of hundreds of thousands
of survivors, probably over generations. No government, Indian or US, and no courts, Indian or
US, have been able to get UCC and its present owner, Dow Chemicals, to part with this crucial piece
of information. This is in stark contrast to the UCC’s behaviour when, barely nine months after
the Bhopal disaster, there was a leak at its plant in Institute, West Virginia, USA. On this occasion,
UCC made public, suo moto, a detailed list of all the reaction products that leaked by name and
quantity released, including as little as 3.2 kg of a particular reaction product.18 ‘The reluctance
to act cannot be explained except on the anvil of the dichotomy of “us” and “them”.’19
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Four months after Bhopal, Warren Anderson, then CEO of UCC and now a fugitive from
Indian justice, told a combined hearing of Congressional Sub-Committees that among the most
important issues raised by the Bhopal tragedy was the relationship between multinationals and
developing countries.20 He said, ‘Without the technologies and capital that multinationals help
to introduce, developing countries would have little hope of eradicating hunger and poverty.’21
The multinational corporation (MNC) today is unimaginably more powerful, complex, organised
and more elusive to the law than ever before, and yet, as Jamie Casells points out, it is ‘not even
recognised to exist by most legal systems’22 in the world. The deeper the multinational corporation
entrenches itself into the local, national and international economic relations and psyches, the
more elusive and invisible in law it seems to have become. In the case of Bhopal, the problem of
impunity is a problem of invisibility: UCC has disappeared and with it the prospects of justice.
CORRUPTION, RURAL DEVELOPMENT AND PUBLIC HEARINGS:
OF VISIBILITY AND BEYOND THE LAW
The use of the public hearings (Jan Sunwai) by the MKSS is an interesting example of a social
movement’s preference to summon the community instead of the law in the face of illegality and
impunity. These public hearings are held in a social context of an ordered hierarchy of privileges,
wherein both patronage and abuse of power—and, by extension, office—has a fairly high degree
of social legitimacy, the primary target of the MKSS. The open but disciplined nature of the
proceedings, the presiding independent panel of experts, the ordered and systematic presentation
of the evidence on record, the testimonies and, most importantly, the preparation and build-up
all give the public hearings a procedural integrity (in part because of its likeness to established
legal procedures) that is crucial to their credibility.
The Jan Sunwai has turned out to be a very powerful mode. It has been conducted in a
comfortable, informal idiom of conversation and exchange. Yet it has all the seriousness and
impartiality of court proceedings. Every Jan Sunwai has a panel of judges with independent
credentials, who can ensure that the proceedings are fair, allowing everyone a hearing. The people
are a large jury, before whom hiding the truth is, for obvious reasons, more difficult than
before the judge in court. The simplicity of the arrangements—a tent with a few chairs and
tables for the panellists, a few durries, a mike set, loudspeakers and a video recorder are the
only logistic requirements. These are simple, inexpensive to hire, and easily set up. Incidentally,
the first Jan Sunwai was held under an old parachute brought home by an ex-serviceman and
put up for the day, for shade.23
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It is important to stress that for the MKSS, the public hearings are spaces of ideological contestation and to debate understandings of public morality, not merely to prove beyond reasonable
doubt a violation of an established rule or procedure. For the MKSS, more than the establishing
corruption’s de jure illegality, it is undermining the de facto legitimacy of corruption and the exercise
of power to abuse office that is important. In a court of law, the specific instance of illegality will
be just one more case that will be subject to impersonal norms and abstract principles of legal
reasoning physically, procedurally and even philosophically far removed from the community.
The public hearing, on the other hand, is a social space/forum that people voluntarily participate
in to simply examine the evidence firsthand and make their own judgement of what the truth is.
Mere presence at a public hearing means participation. Every single person present is a judge, a
lawyer and an interested party. The fact is that ‘dispute’ is not between any two specific parties;
rather, it is a process by which the truth or illegality is socially constructed through the public
verification of many different claims.
If people leave the Jan Sunwai, it will be a final judgement of the irrelevance of the happenings.
If people stay to listen and participate, the issue has to be of importance to them, and sustain
their interest. The Jan Sunwai finally makes the organisers publicly accountable. As a result, the
organising group has to have moral credibility.24
It is also important to stress that public hearings serve two important ends: the first of voice,
and the second of audience. In a sense, the idea of redress that underlies a public hearing goes
beyond seeking indictment and securing penal sanctions. Unlike in a court of law, where in the
case of corruption, at least, the focus is on the criminality of the offender, in a public hearing the
focus is on the victim. The very idea of a public hearing is to address the offender and his actions
by reclaiming the agency of the victims rather than surrender this to legal procedure in which the
victim and her community is, at best, a witness summoned to speak.25 For, after all, ‘Ultimately,
a reliance on state legality reinforces the power and authority of centralized control systems,
disables the potential for human community and human justice outside their bounds, and increasingly reduces human interaction to a stale dichotomy of legality and illegality.’26
Unlike a court, a public hearing is also an audience to whom people can address the politics of
corruption and its criminality. In doing so, public hearings open up the possibility of reconfiguring
relations of power that enables corruption in development in the first place. And this specifically
includes redrawing lines of solidarity especially since corruption like all crimes, involves both
cooperation and coercion.27
What the public hearing also does is establish a relationship between the offender, the victim
and the community. For instance, two of the most commonly found forms of corruption are
recording false names on the muster rolls of public works and paying people less than what they
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are entitled to (wages recorded as paid in the rolls are higher than what they actually receive).
While the latter is a clear case of people being denied their rightful dues, the former presents a
situation where no specific individual has actually been denied an entitlement. The public hearings
and the MKSS strategy have sought to focus and engage with this spectrum of corruption by
building a relationship between people who are not direct victims of the corruption (such as those
whose names are falsely used in muster rolls), the larger community and the offender. Silence in
the face of the practice of corruption, the MKSS argues, victimises everyone, not in the least by
implicating people named falsely in muster rolls, not only in terms of the act itself but also in
terms of its consequences, of being ‘used’ to divert from the larger community what is rightfully its
due. The results of this have been quite dramatic in terms of being able to build a new consciousness
of peoples’ relationship to crime itself.
The public hearings have had significant impacts. The most dramatic of them have had elected
representatives publicly admitting guilt and returning the amounts they defrauded to the people.
For instance, Sarpanch Basanta Devi of Kukarkheda Panchayat in Rajsamand district returned
Rs 50,000 against a fraud of Rs 1 lakh28 that was exposed at a public hearing. Similarly, the
Sarpanch of Surajpura returned 1,14,000 and the Sarpanch of Rawatmal returned 1,47,000 in
the hearing itself.
In Umarwas Panchayat of Rajsamand district, a large embezzled amount was recovered
from Ward Panch Nain Singh and Panchayat Samiti member Kamala Devi, proxy leaders of the
village who had used the Dalit sarpanch as a rubber stamp for their malfeasance, when fraud was
unearthed in a Jan Sunwai.29
Public hearings have also forced the otherwise recalcitrant government machinery into acting
against corruption in development. In the case of the Janwad Panchayat, the public hearing
exposed defalcation to the tune of more than Rs 7 million, including 49 fictitious development
works that were confined only to paper. Following an official enquiry set up by the state government into the case, a series of senior officials and elected representatives were suspended and
imprisoned, and recovery proceedings initiated against them.30
Thus, for the MKSS, the public hearing is a social technology that ‘breaks the heavy dependence on the Government for redressal’.31 The public hearing restores the agency and humanity of
victims by providing a social recognition of victim, offender and offence.32 It is vital to stress that the
terms of debate at public hearings are never those of legality and illegality: if anything, the public
hearings actually rest on a rather thin understanding of the law. The focus of the public hearing
is really reviewing the information contained in official records in the light of the knowledge held
by the people and their experiences. The centring of what people know rather than what the State
claims is the first step towards moving away from relying on State legality. The social technology
of public hearings can also be understood as reflective of the ‘destructuring’ of criminality: public
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hearings are social responses to corruption that parallel the abolitionist thrust towards delegalisation (away from the State) and deprofessionalisation (away from expert) of criminality.33
As a methodology that involves a very thick reading of the interaction between the (il)legal and
the (il)legitimate, central to which is an exculpation of truth rather than affixation of guilt, the
public hearing seems very effective. An indictment or, more generally put, a verdict is actually in
some senses incidental to the public hearing and is often neither overtly delivered nor necessary.
What makes public hearings powerful and effective is that their immediate objective is to exculpate the truth rather than affix guilt. In fact, more often than not, public hearings merely provide
evidence-based public verification of what is already known or widely suspected to be the truth.
And while this makes them a great threat, it also renders them hard to resist, since any resistance to
uncover the truth is itself perceived as a sure sign of guilt and complicity. However, the two
important questions that arise relate to the deterrent value of public hearings as well as the
nature of justice that they deliver.
It goes without saying that public hearings have led to a significant distortion of power relations between people—in particular the poor—and elected representatives as well as the development bureaucracy in the areas where the MKSS has an active presence. It has become common to
hear of officials being unhappy when posted to areas in which the MKSS is active, or of contractors
becoming wary of executing projects in villages where there is a high degree of social mobilisation
and awareness around the need for public scrutiny. It is also equally common to hear of officials
and elected representatives expressing fears—within their own circles, of course—of their work
being subjected to public hearings or even a simple right to information application. There has,
however, yet been no attempt to empirically establish the deterrent value of public hearings,
given the significant methodological problems that such a study will involve.
It is important to stress that the ‘success’ of the public hearings, especially in terms of forcing
the corrupt to recant publicly and even return their ill-gotten gains, has been restricted to elected
representatives. Officials of State, including those at the lowest levels of the hierarchy, often do not
even show up for public hearings; even if they do, it does not appear that they feel the same kind
of pressure as the local elected representatives to defend or even explain themselves publicly.
While it is obvious that this has to do with the specific nature of the electoral relationship
that the elected representative is embedded in, it is also indicative of the relations of power and
impunity that exist between the civil service and the people. It appears that the elected representatives
fear not so much their loss of credibility as leaders but the risk of being socially and, therefore,
politically disconnected as a result of the public exposure and shaming. If the public recant—apology
and/or return of embezzled resources—is akin to a plea for reintegration,34 then impunity arises
from the social and relational distance between civil servants and the people.
In this context, it is perhaps more appropriate to focus on the second question: the nature
of justice that a public hearing delivers. Public hearings could easily be viewed as a mechanism
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of ‘participatory justice’35 which provides a sanctuary for the mediation of a specific set of social
relations. But with what outcomes? Not every public hearing has resulted in a public recant, let
alone return of embezzled public money. That, however, is perhaps not the moot question; the
key issue is whether public admission of guilt and even ‘voluntary’ return of ill-gotten wealth
constitute justice. To be more precise, in the context of an individual act of wilful legal and moral
trespass, does public atonement and forfeiture of illicit proceeds mean the end of impunity and
the beginning of accountability?
IN LIEU OF A CONCLUSION: CRIMINALITY, IMPUNITY,
AND LEGAL AND SOCIAL CLOSURES
According to Pierre Bourdieu:
The juridical field is the site of a competition for monopoly for the right to determine the law.
Within this field, there occurs a confrontation among actors possessing a technical competency
which is inevitably social and which consists essentially in the socially recognised capacity to
interpret a corpus of texts sanctifying a correct or legitimised vision of the social world. Such
a process is ideal for constantly increasing the separation between judgements based on law
and naïve intuitions of fairness.36
At the heart of this competition are ideological conflicts that cannot be subject to the ‘determinate rationality of legal analysis’,37 which will, at best, ‘settle the case and the case only’.38 Far
from ending or resolving social conflicts, legal closures, more often than not, merely herald a change
in the nature, direction and dynamics of the conflict.
Before subjecting any conflict to the law, social movements would prefer to summon the community and attempt to ‘distort’ legal reasoning itself by dragging it into the arena of political
negotiation. It is important to stress that, for the MKSS, the public hearings are not an end in
themselves—they are, in a limited sense, an important tactical tool in the struggle to secure the
right to unhindered access to all information that is in the possession of the various organs of
government with respect to development expenditure, that is, a high level of informed public
scrutiny of the business of government.
Like in the case of most social movements, the MKSS’ struggle to establish accountability is
based on a strong ethical foundation articulated in terms of rights—more specifically, in terms
of the right to information, the right to participation and the right to hold government accountable.
It marks a transition from subject to citizen and from democracy in form to democracy in action—to
a politics of sovereignty, which,
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…would displace law from its central place in discourse, reflection and conflict and would
challenge rights rhetoric and policies by confronting them with a self-constitution of a concrete,
embedded, subject. A politics of sovereignty would imply empowering practices rather than
demands for more, new, protective legislation.39
Protective legislation, as in the Claims Act in the case of the Bhopal gas disaster, can often result
in enhancing impunity rather than protect the victims. Any legislation that aims to be meaningfully protective must ensure that it ‘does not foreclose autonomous normative production and
the self-determined development of social relations’.40
The competitive politics of economic globalisation have only rendered it more difficult to deal
with another Bhopal. In fact, multinational corporate liability has become even more distant from
the law. One of the amendments to the Factories Act of 1948 which was executed shortly after the
Bhopal gas leak absolves the designer, manufacturer, importer or seller of plant and machinery once
the end-user gives an undertaking that ‘if used properly’, no harm would result from the hazardous
technology involved. Another amendment actually strengthens industrial secrecy by placing
undue restraints on disclosing possible industrial hazards on factory inspectors. Thus, while India
witnessed legislative and policy changes that actually strengthened industrial secrecy and MNC
impunity, the US enacted several measures that enhanced the right to know and accountability
for the deployment of hazardous technology, but only within its own borders.41
An interesting and significant response to corruption in development is what is advocated as
‘new public management’, an approach that seeks to separate the roles of the bureaucrat and the
politician. This approach rests on the former being concerned with outputs or policy implementation while the latter takes responsibility for policymaking and outcomes.42 The primary understanding that informs this model is to safeguard or ring-fence civil servants in development
administration from politicians. Of course, the problem with this model is that it assumes that
politics can and must be kept separate from public administration.43 However, if anything,
the work of the MKSS demonstrates that the problem is somewhat the reverse: corruption in
development administration is a result of less, not more, politics. As Robert Williams points out,
‘Our understanding of corruption is formed by the political process, as is our general sense of
what is politically legitimate.’44 To paraphrase Williams, if taking impunity out of politics is generally thought desirable, taking politics out of our understanding of impunity would be a mistake.
Much of the debate about defining and understanding impunity is ‘about competing conceptions of the nature of politics’. And impunity always lurks in the midst of these competing
conceptions of politics.
An instructive example here is the Supreme Court verdict in the infamous TANSI case involving
the then Tamil Nadu Chief Minister J. Jayalalitha.45 The Supreme Court, overturning the decision
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Vijay K. Nagaraj
of the High Court, acquitted Jayalalitha of all charges but did not absolve her. In an instructive
concluding paragraph, the Supreme Court holds:
Good ethical behaviour on the part of those who are in power is the hallmark of a good administration and people in public life must perform their duties in a spirit of public service rather
than by assuming power to indulge in callous cupidity regardless of self imposed discipline.
Irrespective of the fact whether we reach the conclusion that A-1 (Jayalalitha) is guilty of the
offences with which she is charged or not, she must atone for the same (…) not only by returning
the property to TANSI unconditionally but also ponder over whether she had done the right
thing in breaching the spirit of the Code of Conduct (…) and take steps to expiate herself.46
(brackets mine)
In the face of overwhelming suspicion, Jayalalitha atoned by returning the property to TANSI,
UCC atoned by way of the settlement and corrupt local government leaders exposed by the MKSS
atoned by way of returning embezzled public funds at public hearings. The only thing left to be
revoked is their impunity.
By its very multifaceted nature, impunity not only defies simple definitions, but also every act
of defining it implicates both the definer and the defined within a specific context of social and
political relations. Like crime, impunity is not a ‘discrete, hermetically sealed phenomenon’.47 This,
however, does not mean that it can be abandoned to the realm of relativism: more than anything,
it is, to begin with, an acknowledgement of the ‘embeddedness’ of impunity in social, political,
economic and cultural relations. Furthermore, it is also a recognition of the fact that any response
to impunity, in theory or in practice, necessarily involves critical recognition of the location of the
respondent as well as significant others, individuals or institutions who are directly or indirectly
‘involved’ as actors in (or reactors to) the original ‘sin’ with which impunity is concerned.
NOTES & REFERENCES
1. Jenkins, Robert and Ann-Marie Goetz. 1999. ‘Accounts and Accountability: Theoretical Implications of the
Right-to-Information Movement in India’, Third World Quarterly, 20(3): 603–22.
2. Ibid.
3. Ibid.
4. Barak, Gregg, Stuart Henry and Dragan Milovanovic. 1997. ‘Constitutive Criminology: An Overview of an Emerging
Postmodernist School’, in Brian Maclean and Dragan Milovanovic (eds), Thinking Critically About Crime. Vancouver:
Collective Press.
5. Bourdieu, Pierre. 1987. ‘The Force of Law: Towards a Sociology of the Juridical Field’, Hastings Law Journal,
38(5): 814–53, in Sharma, H. Rajan. 2004. ‘Catastrophe and the Dilemma of Law’, Seminar, No. 544, p. 19.
December 2004.
Revisiting Impunity and Criminality
329
6. Clouds of Injustice: Bhopal Disaster 20 Years On. 2004. Amnesty International, UK.
7. Ibid.
8. On 14 December 1984 Jackson Browning, then Director of Health, Safety and Environmental Affairs for UCC,
told a Congressional Hearing: ‘MIC is an extremely hazardous chemical. It is reactive, toxic, volatile and flammable.’
(Statement of Jackson B. Browning, Hazardous Air Pollutants, Hearing before the Subcommittee on Health and
the Environment of the Committee on Energy and Commerce House of Representatives, Ninety-Eighth Congress,
Second Session, December 14, 1984, Serial No. 98–192, US Government Printing Office, Washington, p. 17.)
Following are extracts from UCC’s Hazardous and Reactive Chemicals Manual:
Methyl isocyanate is a hazardous material by all means of contact. Its odor or tearing [weeping] effects cannot
be used to alert personnel to an unsafe concentration of vapor.
Methyl isocyanate is a recognised poison by inhalation and is intensely irritating to breathe. Major residual
injury is likely in spite of prompt treatment.
9. ‘Bhopal Methyl Isocyanate Incident Investigation Team Report’. Union Carbide Corporation, Danbury, Connecticut,
March 1985.
10. The cases of Warren Anderson, UCC and UCE never appeared in the criminal proceedings, and were transferred
to the Sessions Court.
11. Accused 2, 3, 4 and 12 were to be charged under Section 35 read with Section 304A.
12. Ramanathan, Usha. 2001–02. ‘Business and Human Rights: The Indian Paper’. IELRC Working Paper, International
Environmental Law Research Centre, Geneva/New Delhi, p. 15.
13. ‘Memorandum in Support of Union Carbide, (Kelly, Drye and Warren), US Southern District Court of
New York’, in Re: Union Carbide Gas Plant Disaster at Bhopal, India, in December 1984, MDL Docket No. 626,
85 Civ. 2696 (JFK), pp. 12–13.
14. ‘Bhopal Journal: Voiceless Victims’, The American Lawyer. April 1985, p. 130, cited in ‘Clouds of Injustice: Bhopal
Disaster 20 Years On’, Amnesty International, London, 2004, p. 51.
15. Order 15.02.1989 in Civil Appeal Nos 3187–89, Union Carbide Corporation vs Union of India, Supreme Court
of India, Para 2c.
16. Muralidhar, S. 2004–05. Bhopal Gas Leak Disaster: Legal Issues. IELRC Working Paper, International Environmental
Law Research Centre, Geneva/New Delhi, p. 66.
17. Bhopal Methyl Isocyanate Incident Investigation Team Report, Union Carbide Corporation, Danbury, Connecticut,
March 1985.
18. ‘Chemical and Engineering News’, p. 6 dated 2 September 1985, in Jones, Tara, Corporate Killing. 1988, p. 51.
London: Free Association Books.
19. Muralidhar. Bhopal Gas Leak Disaster, p. 6.
20. Written Statement of Warren M. Anderson, 26 March 1985, in ‘Release of Poison Gases and Other Hazardous
Air Pollutants from Chemical Plants: Joint Hearing before the Subcommittee on Health and Environment and
the Subcommittee on Commerce, Transportation and Tourism of the House Committee on Energy and Commerce
House of Representatives, 99 Congress, first session’, in Nagaraj, Vijay K. with Nithya V. Raman, ‘Are we prepared
for another Bhopal?’ Seminar, No. 544, p. 52, December 2004.
21. Ibid.
22. Cassels, Jamie. 2000–01. ‘Outlaws: Multinational Corporations and Catastrophic Law’, Cumberland Law Review,
31(311).
23. ‘From Information to Accountability-Reclaiming Democracy’, in Selective Writings on MKSS and Right to Information
In India. Mazdoor Kisan Shakti Sangathan (MKSS), undated.
24. Ibid.
25. Ibid.
330
Vijay K. Nagaraj
26. Farrel, Jeff. ‘Against the Law: Anarchist Criminology’, in Maclean and Milovanovic (eds) 1997, op. cit.
27. Young, Jock. 2002. ‘Ten Points of Realism’, in Jewkes, Yvonne and Gayle Letherby (eds), Criminology: A Reader.
Sage Publications.
28. However, she later withdrew this money with the connivance of local officials.
29. ‘Mazdoor Kisan Shakti Sangathan, Rajasthan, ‘Presentation based on grassroots experience and the perspective
of people’s struggle to access information’, in Selective Writings on MKSS and Right to Information in India. MKSS,
undated.
30. Ibid.
31. Ibid.
32. Barak, Gregg, Stuart Henry and Dragan Milovanovic. ‘Constitutive Criminology: An Overview of an Emerging
Postmodernist School’, in Maclean and Milovanovic (eds) 1997, op. cit.
33. Stanley Cohen cited in Swaaningen, Rene Van. 1997. ‘Abolitionism: An Alternative Vision of Justice’, in Brian
Maclean and Dragan Milovanovic (eds). Thinking Critically about Crime. Vancouver: Collective Press.
34. From this point of view, it is obvious, and even tempting, to offer the mode of public hearings as a useful strategy
of ‘reintegrative shaming’ to deal with corruption in development.
35. Nils Christe in Swaaningen, Rene Van. 1997. ‘Abolitionism: An Alternative Vision of Justice’, in Brian Maclean
and Dragan Milovanovic (eds). Thinking Critically about Crime. Vancouver: Collective Press.
36. Bourdieu, Pierre. 1987. ‘The Force of Law: Towards a Sociology of the Juridical Field’, Hastings Law Journal, 38(5):
814–53, in Sharma, H. Rajan. 2004. ‘Catastrophe and the Dilemma of Law’, Seminar No. 544, p. 19, December
2004.
37. Unger, Roberto Mangabeira. 1983. ‘The Critical Legal Studies Movement’, Harvard Law Review, January, 96
Harv. L. Rev. 561.
38. Cohn, Bernard. 1996. ‘Some Notes on Law and Change in North India’, in N. Jayaram and S. Saberwal (eds),
Social Conflict. Delhi: OUP.
39. Pitch, Tamar. 1995. Limited Responsibilities: Social Movements & Criminal Justice. London/New York: Routledge.
40. Ibid.
41. Nagaraj, Vijay K. with Nithya V. Raman, ‘Are we prepared for another Bhopal?’ Seminar. Vol. 544, p. 52. December
2004.
42. Das, S.K. 2001. Public Office, Private Interest: Bureaucracy and Corruption in India. New Delhi: OUP.
43. Ibid.
44. Robert Williams. 1999. ‘New Concepts for Old’, Third World Quarterly, June, 20(3): 503–13.
45. The foundation of the case were various charges that public property belonging to a state-owned industry
was deliberately sold for less value with a view to confer pecuniary advantage to a firm belonging to Jayalalitha
(who, at the time of the sale, was not only chief minister but also held the portfolio of minister of industries)
and her partners, which resulted in wrongful loss to the government company and wrongful gain to the former.
Specifically, it was argued that Jayalalitha’s actions were a breach of the Code of Conduct of Ministers and some
other sections of the IPC.
46. R. Sai Bharathi vs J. Jayalalitha and Ors., SLP (crl.) 477 of 2002.
47. Ibid.
14
Khap Panchayats in Haryana:
Sites of Legal Pluralism
K.S. Sangwan
INTRODUCTION
The Khap1 Panchayat, like the caste system and joint family systems, is a traditional institution
engaged primarily in dispute resolution and in regulating the behaviour of individuals or groups
in rural North India. While the smaller issues are taken up by the village panchayats, the Khap
Panchayats resolve disputes of wider concern within their operative territory. Sometimes active
in the political sphere, they have mainly been confined to social issues. Historically speaking, the
Khap Panchayats are very old. But they attracted the attention of scholars only when the electronic
media highlighted certain of their decisions which violated the human rights of individuals. These
decisions were mainly related to marriages which violated the traditional moral code of conduct,
especially the concept of village bhaichara (brotherhood), gotra2 bhaichara (clan brotherhood) or
Khap bhaichara (brotherhood of persons belonging to same khap, signifying equality within the
Khap), which form the basis of community harmony in Indian villages, especially those in northern
India. After Independence, the authority of these Khap Panchayats has been challenged by modern
institutions of justice such as courts, which function on the principle of rule of law.
Despite this formal transition, Khap Panchayats remain popular among the people for a number
of reasons: they do not involve any money; they are less time-consuming; there is a direct negotiated
settlement between both parties before a large audience that includes persons of authority in the
panchayat; they help to maintain social order among people of different castes; and they act as an
important agency of social control. These factors have been responsible for its survival over a long
period of time. The State and the local administration normally do not interfere in the functioning
of the Khap Panchayats, avoiding any confrontation with them even when the courts decide against
them, which is a pointer to the entrenchment of the Khap Panchayat in rural society. Sometimes,
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however, the decisions of the Khap Panchayats militate against the modern law of the land, and,
therefore, violate human rights. This creates a contradiction between traditional system of dispute
resolution and modern institutions such as the judiciary and the administration. In this chapter,
I would like to focus on the Khap Panchayats, their brief history, structure and functioning through
a comparative analysis of decisions between Khap Panchayats and the formal legalities.
There is lack of literature on the origin of the Khap Panchayat, but there are certain references
in some studies that indicate the existence of multi-village organisations which are structurally
similar to Khap Panchayats. There are records which provide evidence of a cluster of villages
functioning as a single unit which was demarcated, in different instances, on the basis on clan
(gotra), caste, administrative units or political allegiance.3
In the Ludhiana Settlement Report,4 Gordon Walker writes that in the Samrala tehsil, the
multiplicity of got (clan) among the Hindu Jat was a remarkable feature. The adjoining villages not
only belonged to different gotras but inside each village, there were generally two or three sections
(patti) of distinct clans. Going by their appearances, the village founders came from different parts
of the country and belonged to different gots. The basis of village unity was perhaps a sense of
belonging to the same general tribe. In the southwest of the district in some cases, however, the
Jats settled in large but homogeneous groups. The existence of small villages in the eastern parts owed
itself to the protection provided by an imperial authority strong enough to protect its subjects.
In the other areas, on the contrary, no such protection was felt, and the people of a single tribe
had to collect in large contiguous villages for protection. Grewal and Gill Jats had a cluster of
50 villages each near Ludhiana town and in the Jagraon tehsil, respectively, and they might not
have needed any protection, since the Jat villages and others showed a sense of clan organisation.
They tended to band together for social comfort and self-defence.
The existence and role of the Khap Panchayats were recognised during the Mughal period in
much clearer terms. Emperor Akbar granted freedom to the Khaps in matters of religion and
internal administration. They were exempt from taxes and the Khaps were allowed to perform
their internal functions with full freedom.5 Another mandate by Emperor Akbar said that ‘every
community and the Khap of the Doab have the freedom to carry out their functions according
to their old custom and laws within their respective Khaps’. He further stated that these different
Khaps may unite in one group and live in peace with each other (Mandate of 8th Ramzan 987
Hizri [AD 1578] emperor Akbar). Such royal mandates were issued by various Mughal emperors
from time to time. One of the last mandates issued in 1157 Hijri (AD 1748) to the Khap Wazir
was regarding the raising of a military force to help the emperor in maintaining peace in the area;
it also simultaneously warned the Khap Wazir that strict action would be taken against any section
that revolted against him.
The Wazir of the Khap Balyan, in the Muzaffarnager district in Uttar Pradesh, was recognised
as the leader of the Khap through a mandate issued by Emperor Akbar. Another mandate issued
Khap Panchayats in Haryana
333
by Bahadur Shah on 13th Rajab 1116 Hijri (AD 1707) stated that the Wazir of the Khap Balyan
was given the right to fix and collect the land revenue from the Khap villages on behalf of the
government.6 On certain occasions, the Emperor used to invite the chaudhris of various Khaps
to visit him, feasting them and offering gifts to create mutual trust. He also assured them of
non-interference in their internal affairs.
The Mughal emperors dependency on the Khap and Sarv Khap Panchayat provided legitimacy to the Khaps in terms of the protection of the religious faith of the Hindu castes that fell
under the jurisdiction of the various Khaps. This also enabled the Khap Panchayat to raise large
armies to defend their given area and, indeed, putting up resistance to the Mughal rulers.
Historical records indicate that the territorial units of certain villages are very old and can
be traced to the Vedic and the post-Vedic periods. Whenever and wherever a large tract of land
was found available, a tribe moved in and occupied it. As a result, in particular areas some tribes
established their dominance over other tribes. The subsequent change in the composition of
such sedentarised groups seem to have been motivated by demographic and political factors.
The emergence of multi-clan multi-caste units such as the Chaubisi (‘the 24’), the Baawani
(‘the 52’) and the Chaurasi (‘the 84’), should be seen in this context alone. The Mughals and the
British, instead of interfering in the functioning of such organisations, chose to use them to serve
their own interests. Simultaneously, these organisations continued to provide a common platform to their constituents in order to resolve their various problems.
Broadly speaking, the criteria for the organisation of the villages appear to be:
(1) The villages were united on the basis of gotra, or descent from one common ancestor—for
example, the Dahiya Khap, the Sangwan Khap, the Sheoran Khap, the Dalal and the Hooda
Khap.
(2) The villages were also organised on the basis of single-caste dominance but with multiple
gotras—for example, the Chaubisi of Meham, the Chaurasi of Baawal, etc.
(3) Groups of villages based on different castes and clans were combined into units for revenue
purposes and also to provide defenders of the ruler or the revenue-in-charge of these
villages.
Although the villages existed as self-sufficient and autonomous bodies in the past, it does
not mean that they existed in complete isolation from one another. Panchayats or assemblies of
different villages, belonging either to the same clan or to different clans but living in a particular
geographical area, were common. Malviya, while commenting on the relationship between the
State and village communities, points out that villages in ancient India were important in the administrative machinery mainly because of the close unity with which they were knit through
the institution of the panchayat. The State gave the village body complete authority and rights over
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K.S. Sangwan
all village affairs.7 It is through this institution that the populace exercised its rights and duties.
The panchayats were expected to ensure a high level of justice, fair play and efficiency, in the absence of which the panchayats could not command respect from the villagers.
While there is not much literature available on Khap Panchayats, the dispute resolutions by
multi-village panchayats in other parts of the country can be equated with the Khap Panchayats
of northern India.
Lewis8 found the existence of multi-village panchayats of 20 villages, popularly known as
Bisgama (Bis = 20, gama = village), which was further divided into smaller units of two, three and
four villages popularly known as Daugama, Tigama and Chaugama. These villages were dominated
by people of the Dabas gotra.9 Lewis also noted that other castes also had their caste organisations
on the pattern of the Dabas. He observed that while this multi-village panchayat was active, its
effectiveness had declined due to the emergence of new institutions of dispute resolution.
Chauhan, in his study of a Rajasthan village, has tried to analyse a multi-village panchayat
popularly known as chokhla.10 He has discussed the nature and working of the chokhla of different
castes and found that, through collective action, the chokhla helped to maintain some control
over its members.
Sachchidananda11 discussed the multi-village panchayat among the Munda tribe. He found
two important institutions, the Hatu Panchayat and the Parha Panchayat, of the Munda polity.
The former functioned at the village-level; the later was the regional council of a group of villages. The Munda Panchayat consisted of the influential and elderly persons of the villages.
The Parha was found to be concerned with the members of those of the Munda tribe living
in the Parha area, non-Munda tribals and non-tribals. The members of the other clans residing in
the Parha area were also supposed to abide by the decisions of the Parha that oversaw their territory. Sachchidananda further observed that while with the introduction of statutory panchayats
and courts of law these panchayats were in the process of decay, the influential people in the Munda
society tried to revive the panchayats by changing their composition and functions to meet the
challenges of the situation.
Murti12 tried to analyse the traditional panchayat system of the Badagas of the Nilgiris and
found the existence of a panchayat based on a four-tier system. At the apex was the Nad Panchayat
(Maklu-Bitta), followed by the village panchayat and finally, hamlet panchayat.
Fox,13 examining the historical structure of local political groups and their interaction with
state government’s machinery, noted that in northern India, caste and unilineal kinship were the
major determinants of the structure of state-hinterland interaction. The compact lineage might be
designated as a tappa (a sub unit of Khap with more than one village) and be incorporated with
other kin defined tappas into a pargana (a revenue unit). These groups claiming to be Kshatriya
status performed many political and military functions.
Khap Panchayats in Haryana
335
Aggarwal,14 while studying the relationship between the caste, religion and power, noted
the existence of multi-village panchayats among the Meos of Haryana and adjoining Rajasthan.
The hierarchy of the traditional Meo Panchayat was pal (equivalent to Khap), thamba (equivalent
to tappa) and at the village level. The jurisdiction of the panchayat at the pal level was multi-village
and over all the castes in the area. It was found that the position of the Chaudhary at the pal level
was hereditary. Ranking below the Chaudhary were the dhings, wealthy men who controlled large
factions. The dhings and Chaudhary, together with the leaders of the various thambas within
the pal, constituted the Pal Panchayat, which could be convened by any member of the pal.
Below the Pal Panchayat were the Thamba Panchayats.
The panchayat was effective in settling the inter- and intra-caste disputes. Members from other
well-to-do castes were also included if they were wealthy enough and exceptionally capable. However,
this privilege was not extended to the lower castes. It has been argued that the introduction of
statutory panchayat administration and courts have diluted the effectiveness of the traditional
panchayat.
Singh15 observed that in an Uttar Pradesh village, when a village caste panchayat failed to satisfy
a faction, the aggrieved party could summon a bigger caste panchayat of seven, 12, 24, 42 or even
84 villages. He quoted a case of a factional split among the Julahas (weavers) over the question of
dowry, for which a caste panchayat of 84 villages was called and the matter resolved.
Mayer16 observed the existence of multi-village panchayats, which he termed ‘Council’. A
Council of five neighbouring villages was known as Pankhera, or circle council. The third type of
council at the higher level was the provincial council. While the main function of all these councils
was to exercise social control over the people of castes and sub-castes, over time the lack of kinship
relations and geographical contiguity of the lineage weakened the effectiveness of this institution.
Hayden17 tried to analyse the traditional mode of dispute resolution among a nomadic
non-literate Telugu-speaking caste of Maharashtra. He noted that caste councils (panchayats)
were among the most important traditional legal institutions in rural India, where caste was the
primary social group. However, when caste lost its salience as a primary source of identity and
social ties, the importance of the caste panchayat also declined.
Miller,18 in his study of the changing patterns of social inequality in a village in Rohtak district, Haryana, noted that the elders of the Khap Panchayat of the Chahar (Jat) gotra continued to
deal with intra-caste matters but that their influence had become weak over time.
Pradhan19 in his study of the political systems of Jats in Northern India, studied the Khap
Panchayat—which were the major source of dispute resolution—of the Balyan gotra consisting
of Chaurasi (84) villages in western Uttar Pradesh. The author tried to analyse the structure and
functioning of the Khap Panchayats based on single clans with the help of the concept of bhaichara
(brotherhood) from the village to the multi-village level. He found that the concept of bhaichara
helped the Jats to organise their social and political life under changing conditions—moving from
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K.S. Sangwan
the traditional, homogeneous, non-contractual society to the modern, contractual, heterogeneous
society—and yet retain customs and beliefs within homogeneous descent groups.
STRUCTURE OF THE KHAP PANCHAYAT
According to Pradhan,20 the Khap could be defined as a unit of a number of villages organised
into a political council for the purpose of social control. The Khap area was inhabited either by
a dominant caste that had control over most of its agricultural land, by a single clan or by more
than one clan, each with a number of villages and being predominant in those villages. When a
single clan had only few villages—say, four or five—other clans could also join into a common
Khap for the purpose of their defence and control over their people. When a Khap was dominated
by a single clan, its headship lay within that clan. When the number of clans exceeded one, the
headship went to that clan that had more number of villages under its aegis.
The Khaps could be classified into the following types:
(1) Those based on a single caste and a single clan: In this category, a particular geographical
area was dominated by a single gotra of a particular caste. The gotra had a sizeable number
of villages in that area, for example, the Dahiya Khap, the Hooda Khap, the Malik Khap,
the Sangwan Khap, the Sheoran Khap, and so on—all of which were located in Sonepat,
Rohtak, Bhiwani, the districts of Haryana—and the Balyan Khap in the Muzaffarnager
district of Uttar Pradesh. These Khaps had between 40–84 villages. The people of other
gotras also lived in these villages, but they were fewer in number. While other castes like the
Scheduled Castes and the Backward Castes also resided in these villages, the power and
the major landholding lay with the majority gotras.
(2) Those based on single-caste but multi-gotra: Such types of Khaps consisted of entire
villages which were dominated by a single caste, with some of the villages dominated by
various gotras. The Chaubisi organisation of 24 villages of Meham in the Rohtak district of
Haryana is an example of such a Khap.
(3) Those based on multi-caste and multi-gotras: Such Khaps had villages in a particular
geographical area, of which some villages were dominated by a particular caste and other
villages by other castes but with different gotras. These different castes which dominated
such Khaps enjoy more or less equal status in the caste hierarchy and own the major landholding in these villages. The Bawal Khap of Chaurasi in the Rewari district is an example
of such a Khap.
Khap Panchayats in Haryana
337
Broadly speaking, there were four categories of Khap Panchayat: Sarv Khap Panchayat, Khap
Panchayat, Tappa or Kanni Panchayat and the ubiquitous village panchayat.
The Sarv Khap was the combination of many Khaps of neighbouring areas, but sometimes
representatives of other Khaps from far away also participated in it. The size of the Sarv Khap
depended upon the nature and seriousness of the issue involved. Participation in a Sarv Khap by
representatives of other Khaps was voluntary but only on invitation. Women were not allowed
to participate in panchayats at any level, whether it was the Sarv Khap, the Khap (Tappa) or
even the village panchayat. Women were not even allowed to put their views in the panchayat in
cases related to women. Similarly, the lower castes and the Scheduled Castes did not participate
in these panchayats. Sarv Khap Panchayats were held only when some serious issues were discussed. The panchayats were held very rarely. Such panchayats could also be caste-specific.
The Khap for a dominant clan or caste included all castes falling under its jurisdiction.
Each Khap had a pradhan, which was a post sometimes hereditary and sometimes nominated on
the basis of the pradhan’s reputation for fair play, his power of argument and his socioeconomic
position in the area. Where the matter under consideration was of a wider significance, the
decisions were binding on the other castes as well. In lesser matters, different castes could hold
their separate panchayat on the pattern of that of the upper caste. If the dispute was inter-caste,
it was decided by the Khap Panchayat of the upper caste or clan, in which the lower caste people
also participated. The lower castes were expected to follow the norms and traditions of the upper
castes who fell under the jurisdiction of the Khap. For example, the minority caste would also
follow the principle of Khap bhaichara or gotra bhaichara. Therefore, the rule of exogamy was
applied in cases of marriage among these castes.
The Khap may be sub-divided into sub-units consisting of two to 12 villages based on the
principle of local contiguity, kinship proximity and ties of economic and social interaction
between the villagers. Of these villages, one village is usually larger than the others. According
to Pradhan,21 a group of villages known as Tappa or Kanni or Ganawad, have some feeling of commonness that binds them into one unit.
These villages can organise a panchayat which is known as the Tappa Panchayat or the
Kanni Panchayat. These panchayats are open to participation and discussion irrespective of caste.
It is only when this panchayat fails to resolve an issue that the matter is taken up at the Khap
level. There is no hereditary pradhan at the tappa or kanni level. An influential person from the
dominant caste who is considered a man of integrity and has the capacity to influence decisions
is nominated as pradhan for a particular panchayat. Sometimes, lower caste people also invite
into their panchayat an influential person from the upper castes to resolve issues to ensure that
their decisions gain wider acceptance.
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K.S. Sangwan
FUNCTION OF THE KHAP PANCHAYAT
When I deal with the functions of the various Khap councils, my focus centres on how these
councils help to maintain the social order by controlling fissile tendencies or by managing conflicts
within the jurisdictions of various councils (See Figure 14.1). These councils establish and maintain internal cooperation and external independence.22 During the medieval period, the Khap and
Sarv Khap councils had some executive and administrative functions such as land revenue collection
and the general administration of the Khap area. These panchayats also worked for the social welfare
of the people falling under their jurisdiction. These functions had legitimacy in the traditional
role of the Khap Panchayat.
Figure 14.1: Structure of the Traditional Panchayats
Sarv Khap Panchayat consists of neighbouring Khaps in an area. There is no fixed number of
Khaps in the meeting of a Sarv Khap Panchayat. The numbers depend upon the seriousness of
the issue under contention and whether or not an invitation has gone out to a Khap pradhan.
The number of Khaps taking part in a Sarv Khap may range from eight to 50 Khaps, or sometimes
even more. Participation in the Sarv Khap is open to all members of the khaps that come together
Khap Panchayats in Haryana
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on a particular issue. However, it is the pradhan of a Khap who calls the meeting of the Sarv Khap
when an issue between two Khaps needs to be resolved or when the issue is of a serious nature. The
Khap pradhan informally discusses the issue at hand with the other pradhans before participating in
the Sarv Khap just in order to mobilise opinion in a manner that would appeal to a larger section
of the community according to the past practice or norms of the moral code of conduct.
The host Khap makes arrangements for tea, meals and the huqqa (smoking pipe) for th