Challenging The Rules(s) of Law: Colonialism, Criminology and Human Rights in India

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Author: Kalpana Kannabiran

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Challenging The Rule(s) of Law

ii


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 SAGE Publications India Pvt Ltd B1/I-1 Mohan Cooperative Industrial Area Mathura Road, New Delhi 110044, India www.sagepub.in SAGE Publications Inc 2455 Teller Road Thousand Oaks, California 91320, USA SAGE Publications Ltd 1 Oliver’s Yard, 55 City Road London EC1Y 1SP, United Kingdom SAGE Publications Asia-Pacific Pte Ltd 33 Pekin Street #02-01 Far East Square Singapore 048763 Published by Vivek Mehra for SAGE Publications India Pvt Ltd, typeset in 11/14 pt AGaramond by Star Compugraphics Private Limited, Delhi and printed at Chaman Enterprises, New Delhi. 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

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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

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3. ‘That Despicable Specimen of Humanity’: Policing of Homosexuality in India Arvind Narrain

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4. Sexual Assault and the Law Kalpana Kannabiran

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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

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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

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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

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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

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Contents

17. Of Strong Medicine and Weak Stomachs: The Resort to Enhanced Punishment in Criminal Law in India Bikram Jeet Batra

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409

18. The Contexts of Criminology: A Brief Restatement Kalpana Kannabiran

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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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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

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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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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

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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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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

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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

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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.

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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.

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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

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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

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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


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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

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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.


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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

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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


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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

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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


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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

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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


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

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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.


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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.

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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


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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]

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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


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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

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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).


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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

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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.


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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.

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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


84.

85. 86. 87.

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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

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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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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


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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

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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


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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

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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


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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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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


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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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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


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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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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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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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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


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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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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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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.


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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’

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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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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


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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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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


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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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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.’


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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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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


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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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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


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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.


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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.


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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?


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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


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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


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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


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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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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.


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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.

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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.


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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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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.


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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

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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;

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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,


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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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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


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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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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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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


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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


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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


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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


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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.


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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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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.

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‘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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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.

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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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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


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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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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.


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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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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.


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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

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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


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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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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.


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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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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


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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.


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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


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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


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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.


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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


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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


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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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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


10.

11. 12. 13.

14. 15. 16.

17.

18. 19.

20.

21.

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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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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.


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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;


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(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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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.


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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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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


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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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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.


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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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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.


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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.

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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

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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

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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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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.


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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


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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.


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.


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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

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38.

39.

40.

41.

42. 43.

44. 45.


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.


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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.

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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.


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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

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84. 85. 86. 87.

88.

89. 90. 91.

92. 93.

94.

95.

96.


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.


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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.

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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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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.

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SECTION III

Legislating the ‘Other’ and the ‘Extraordinaire’

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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

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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

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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

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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


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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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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


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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

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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.


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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

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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


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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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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.


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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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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’.


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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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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


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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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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


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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


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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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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


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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.

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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 )


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(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).

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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’.


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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.

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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.


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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

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57. 58. 59.

60. 61.

62.

63.

64. 65.

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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.


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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


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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


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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


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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.


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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.


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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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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

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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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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

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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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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.

Law and Life in the State of Nature

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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


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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


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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


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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


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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


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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.


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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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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.


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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

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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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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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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.


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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.

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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

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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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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.


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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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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.


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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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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


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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 the Khap pradhans and the other participants. The president or secretary welcomes the delegates. Since there is no hereditary pradhan of the Sarv Khap, one of the seniors among the Khap pradhans is nominated as the pradhan of the meeting of the Sarv Khap for that particular day. The nominated pradhan controls the proceedings of the Sarv Khap Panchayat till a decision is arrived at. The Sarv Khap pradhan asks the host Khap to present the issue before the gatherings of the Khap pradhans and other participants. After the detailed history of the case has been presented, the other Khap pradhans are invited to put their views before the meeting. After hearing out all the speakers, a smaller committee of 10–15 Khap pradhans is constituted to reach a consensus. Before the decision is announced, a hand count shows whether the decision of the Sarv Khap Panchayat would be acceptable to everyone. If issue is related to all the Khaps, it becomes the duty of each Khap to implement the decision in its respective jurisdiction. But if the issue is related to a particular Khap, then the concerned Khap is supposed to abide by the decision of the Sarv Khap. These decisions are informal but announced at the gatherings, so that they are accepted and conveyed to all the Khaps. If a decision is not implemented by the Khap in question, then a meeting of the Sarv Khap involving more Khaps is called again to reinforce the earlier decision. The effectiveness of the Sarv Khap decision depends upon the type of issue, the nature of the decision, community feelings, and unity and solidarity between the different Khaps. The sense of community feeling, cooperation, a traditional value system and the feeling of bhaichara provide the main strength to the institution of the Sarv Khap Panchayat. The main role of the Sarv Khap is to maintain peace and harmony between various Khaps by settling disputes between them or by passing resolutions related to the social welfare of the people such as education of girls, ban on female foeticide and dowry, limited expenditure in marriages and so on. The Khap Panchayat is still considered a powerful institution for resolving disputes or in reinforcing traditional norms and value system. The Khap Panchayat acts as the sole adjudicative, rule-making and rule-enforcing body. When the decision of the Khap is violated by any individual, group, family or village, the Khap tries to act as an executive body. It also acts as a legislative body when issues are related to the welfare of the people. If the tappa or kanni, which forms the third layer of the Khap Panchayat, fails to decide the dispute, the matter is referred to the Khap. The complaint is sent to the Khap chaudhary, who calls a meeting of the representatives of the tappa or kanni pradhans along with other influential persons of the Khap, who can also participate in its proceedings. If the Khap is of single gotra,

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most of the participants are from the same gotra; but if Khap consists of multi-gotras, the representatives of the different gotras take part in it. Similarly, in case of a multi-caste Khap, representatives of the various castes take part in its proceedings. Once the decision is taken by the Khap with the consensus of its constituents, it becomes the duty of its clan or caste representatives of various tappas or kannis to see to it that the decision of the Khap is implemented. If somebody is found violating the decision of the Khap, sanctions are imposed by the Khap so that the sanctity of the Khap’s decision is maintained. The Khap continues to be one of the most effective institutions of social control, at least in northern India. The next is the village-level panchayat, where common people can also express their views. This gives an opportunity to young people to show their capabilities of leadership. The procedure of decision-making here is similar to that in the Khap Panchayat. The village panchayat decides day-to-day issues by calling a meeting of influential persons in the village. When issue comes to the village pradhan, he asks the village chowkidar to announce the assembly of the panchayat, along with the date and the time of assemblage. Most of village elders usually assemble at the centre of the village and express their opinion freely. People from the neighbouring villages do not participate in village panchayats. Both contending parties are invited to put their views before the assembly, which can sometimes lead to heated exchanges. The village elders regulate the discussion by not allowing direct accusations by either party. The discussion helps both in letting off steam and in providing a solution to the problem. After listening to both parties, the panch move aside from the panchayat and discuss the issue. Before announcing the decision, the consent of both parties is taken that they will abide by the decision. Only then is the decision, which is now binding on both the parties, announced.

SOCIAL SANCTIONS Social sanctions, the most important part of traditional dispute resolution systems, help the panchayat in the implementation of their decisions. The fear of social sanction acts as a deterrent on the minds of individuals and families which might be tempted to violate traditional norms. Panchayats from the village to the Sarv Khap levels have their own methods of meting out punishment to their members, depending upon the manner of deviation from the norms of the village, caste or Khap or the type of crime committed. For acts such as theft, fraud, blackmail, physical violence, and so on, most punishments are in the form of fines. Murder, incest and intercaste marriages, on the other hand, invite far more severe punishment such as expulsion from the village or caste, an end to sharing huqqa, water or meals, and excommunication or ostracism from the caste or group or even from the village or Khap.23 Of these, excommunication is considered as


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the most extreme form of sanction available to a panchayat.24 Another extreme form of punishment is asking a person or family to leave the village or Khap territory. This kind of punishment is announced only in extreme cases such as rape, incest and inter-caste marriage. Inter-caste marriage is considered a serious crime only when a girl from an upper caste marries a boy from a lower caste, especially one of the Scheduled Castes.

THE CONCEPT OF BHAICHARA The concept of bhaichara means that members of the same generation are classificatory siblings (bhai–behan) and cannot intermarry.25 This idea of bhaichara starts from village level and continues up to the Khap level. There exist three types of bhaichara: (1) Village bhaichara, in which members of one generation are treated as brothers and sisters as originating from a common ancestor and, therefore, related by blood. This is irrespective of gotra or caste; the ‘siblings’ cannot intermarry within the village. Even the Scheduled Castes enjoy the relationship afforded by bhaichara. The village is an exogamous community. This idea of bhaichara extends to the neighbouring villages, which share geographical boundaries, precluding the possibility of marriages between them. (2) Gotra or clan bhaichara, in which all members belonging to the same gotra in the same caste are treated as brothers and sisters, even if they belong to different villages. This is applied to both the dominant castes and the Scheduled Castes. The Khap of a particular gotra, such as the Sangwan Khap, the Dahiya Khap and the Hooda Khap (among the Jats) enjoy bhaichara on the basis of common lineage. (3) Families belonging to the same caste but with different gotras, which do not marry in the villages of the single gotra Khap because such Khaps are numerically dominated by a single gotra. All other persons living in a Khap area, irrespective of their caste or gotra, treat each other as brother and sister. Khap bhaichara is normally emphasised in the Khap Panchayat. There is an exception to the marriage rule in certain Khaps that are multi-gotra and multicaste, where the people can marry within the Khap. They include the Chaubisi of Meham in Rohtak district, the Chaurasi of Bawal in Rewari district and the Satrol (70 villages) of Hansi in Hisar district in Haryana. Similarly, villages that fall under one tappa or kanni also do not permit marriage within the tappa, although marriage can take place in another tappa if the Khap consists of multiple gotras.

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The idea of bhaichara is not only restricted to the kinship system but also applies to social and political life. The notion of belonging to a particular Khap is an idea of egalitarianism only among the people of the dominant caste, which is extended by the leaders of the dominant caste to people of other castes in order to maintain peace, harmony and unity within the Khap.

CASE STUDIES In this section, I would like to discuss some cases which are of great significance in understanding the functioning of the Khap Panchayats. These cases can be classified in three categories: (1) Pre-Independence cases that fought against the excesses of the rulers. (2) Cases that related to disputes, dowry, social reform and so on. (3) Cases related to marriages that violated custom.

Category 1 Case 1 A Sarv Khap Panchayat was held in Sisrauli in Uttar Pradesh in AD 1760 under the leadership of Danat Rai to discuss the appeal made by the Maratha general, Sada Shiv Bahu, to fight the invasion by Ahmad Shah Abdali. The appeal (translated) made by Sada Shiv Bahu was:26 To the Jats, Gujars, Ahirs and the Jats of 18 Khaps or Paals (theambas), or the heads of thok, and Panchayats, I send my regards. For the defence of religion it is the duty of every Hindu to help me in defending the country. Everyone will have to fight for the defence of the country against the coming invasion. From the ninth century [SB] the apostates have made this country their strong hold and are ruling over it. There will be no better opportunity than this [to drive them out]. Maharaja Surajmal has promised to provide 25,000 soldiers. The servant of the Hindu religion. This letter was read in the Sarva Khap Panchayat, which decided that the appeal for military help should be accepted in order to help the Marathas to defend the country. Every Khap was to provide one army contingent. Two thousand cavalry would be provided. Chaudhary Sheo Lal of Shoran village was to be appointed commanding general of the Sarva Khap armies. The representatives of the Khap were to take a religious vow to fight to the end and were to be prepared to sacrifice their lives.


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An army of 20,000 soldiers was raised and fought under the leadership of the Marathas in the third battle of Panipat against Abdali. The Marathas were defeated and most of the Sarv Khap army was routed and killed.27

Case 2 A Sarv Khap Panchayat (Khap Baliyan) was held in Shoran in AD 1574 under the presidentship of Rao Landey Rai of Sisrauli village. Pradhan provides a useful analysis of political conditions in the country resulting from the advent of Mughal rule.28 In response to Akbar’s policy on religious freedom and autonomy for Khap panchayats, about 90,000 persons attended the Panchayat, at which the resolution passed was as follows: (1) Every Khap should organise and conduct its affairs within its Khap area. (2) Other castes should also organise and conduct their caste affairs within the jurisdiction of the Khap Panchayats. (3) The common interests of the Khaps should be discussed in the Sarv Khap Panchayat of all the 18 Khaps. (4) Each Khap should ask for its recognition by the royal court. (5) Either the Khap leaders should collect the land revenue from their own villages or Khap personnel alone should be appointed as sole contractors for collecting the revenue. (6) Agricultural tax should be levied by the respective Khap, which is then free to increase or decrease the revenue. (7) Khap Panchayats should be free to conduct their community affairs. Most of these claims were accepted by the Mughal court, as various royal mandates verified.

Case 3 In the second decade of the 17th century, the Chaubisi Khap Panchayat of Meham in Haryana protested against the practice called Kola Pujana, brought in force by Nawab Murad Ali of Kalanaur. A newly married girl belonging to the Malik gotra and hailing from a village located near Gohana town, passed through Kalanaur, on the way to her husband’s village. She learnt about this practice, where every newly married girl who passed through Kalanaur, had to spend one night with the Nawab before she joined her husband. She decided not to submit to the Nawab. She ran away from that route and returned to her native village. When asked about the reasons for her return, she informed the people of the practice of Kola Pujana. Subsequently, the village people convened a meeting of their own Khap and adjoining Khaps which included the Malik Khap, the Dahiya Khap, the Hooda Khap and the Chaubisi Khap of Meham. It was resolved that

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they would join hands and fight against the Nawab of Kalanaur. Although the Nawab was killed, the Khap Panchayat suffered a big loss in which many people from different castes died. From Nindana village in Meham Khap alone about 25 people were killed. Their memorial still exists in the village as a reminder of their sacrifice.

Case 4 This case is related to the third Nawab (1835–69) of Loharu in Bhiwani district of Haryana.29 The Khap Panchayat of Sheoran protested against the tax revenue policies of the Nawab. In 1857, when the Nawab and his brother were away to Delhi, the Sheoran Khap attacked the Nawab’s residence, looting costly items and damaging the building. Although the Nawab ultimately succeeded in controlling the protest with the help of the British, he had to change the method of tax collection. This helped the peasantry in getting relief from revenue collection. Again, during the reign of the fourth Nawab, Allaudin Ahmad Khan, who came to power in 1870, people raised a protest in 1877 against his excesses. The protest was crushed and one of the leaders of the Sheoran Khap, Badda Singh, was hanged. Even the last Nawab, Aminuddin, also faced protests from the people of the Sheoran Khap. On 6 June 1935, a meeting of the Khap Panchayat was called at Chahar Kalan village. Aminuddin invited five people of the panchayat for discussions but then arrested them. Later, the Nawab attacked the meeting, arresting another 50 people and confiscating their properties. On 29 April 1936, the people of the Sheoran Khap attacked the police station and captured ammunition and policemen. On 30 April, the Nawab sent in his army which fought a pitched battle in which many people died, many others were captured and some hanged. The struggle continued, with the Sheoran Khap eventually coming out victorious.

Category 2 In this category, I would like to discuss those cases which are of a very serious nature and other cases related to social reform that the Khap Panchayats resolved amicably.

Case 1: Atela Kalan This case is related to the panchayat election in 1995 in Atela Kalan village in Haryana’s Bhiwani district, which falls within the jurisdiction of the Sangwan Khap. Hostilities over candidature and the contest itself resulted in two deaths, one on either side of the dispute. One death was a result of stoning, the second of being shot with a privately-owned revolver. The cases led to convictions on both sides, following which negotiations began for a settlement. In the panchayat, there were


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long speeches about Khap bhaichara, long deliberations in which both parties expressed their views, which created an atmosphere of peace and harmony. The pradhan of the Khap announced the decision that both parties would live in peace and without any ill-will towards each other. Since both parties were on an equal footing, no punishment was meted out: they were simply asked to live like brothers and good neighbours.

Case 2: Butana This case is related to Butana Barah (the 12 villages of Butana) in which 10 persons belonging to four families of the Butana villages were killed. The four families of Hukam Singh, Prithi Singh and his younger brother Chhotu Ram, Om Singh and Rameshar had some dispute over ownership of land. A decade earlier, Om Singh and Prithi Singh, the ex-Sarpanch of Butana, had had very close relations. The dispute over land led to the killings of two sons of Om Singh by the sons of Hukam Singh. Rameshar, who belonged to Om Singh’s family, migrated to Rohtak after the killings. In retaliation, the sons of Om Singh killed the wife, son and daughter of Prithi Singh. The feud continued for many years. Some families migrated from Butana to other places. A meeting of the Sarv Khap was held on 28 May 200630 in which many Khaps participated. The Sarv Khap Panchayat was called by the representatives of the Butana Barah Khap. The meeting continued for four hours, during which both parties presented their views. It was then decided that the disputed piece of land would be divided equally between the two parties and that hostilities would cease. The decision was accepted by both parties.

Case 3 In June 1983, a meeting of a Sarv Khap Panchayat was called by the pradhan of Chaubisi Khap Panchayat to check growing expenditure during marriages and other social issues which were considered as burning problems of the people of Haryana. Representatives of many Khap Panchayats of the area participated and the following decisions were taken: (1) (2) (3) (4) (5)

Expenditure in marriages should be minimised. The barat should not have more than 25 persons in it, and no women would participate. After a person’s death, no feast would be organised. Divorce cases would be resolved by the panchayat. If a girl was divorced without it being her fault, the boy’s family would be fined Rs 11,000 and would face excommunication from the community. (6) No liquor would be served at a marriage party. (7) Those who followed these decisions of the Sarv Khap Panchayat would be honoured.

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The Khap Panchayats, however, have not been very effective in implementing decisions related to social reforms.

Category 3 In this category, I would like to discuss those cases where Khap Panchayats took decisions consistent with the traditional concept of bhaichara but contrary to the principles of modern law. These decisions violated the human rights of individuals who then approached the courts for justice.

Case 1: Sheoran Khap Dr Sumer Singh and his wife Anand Kaur, both B.A.M.S. doctors, had been running a private clinic since 1992 in Badhra village in Bhiwani district, which falls in the jurisdiction of the Sheoran khap. Sumer Singh, a resident of village Paintawas, belonged to the Sangwan Khap, which adjoined the Sheoran Khap. Both Khaps had very cordial relations. The doctor couple were also running an English-medium high school in Badhra. There were other schools nearby that were owned by men who belonged to the neighbouring Sheoran Khap. Competing interests led to the trading of charges and, eventually, violence. Sumer Singh was accused of raping a female patient and was imprisoned. His wife was obstructed from keeping the hospital open. Members of the Sheoran Khap were convicted for unlawful assembly, attacking the hospital and setting it on fire. At every stage of the escalation of conflict, the Khap Panchayts ratified the decisions: the hospital was, in fact, set on fire after a mahapanchayat of the Sheoran Khap. Despite the intervention of the courts, the protection of vested interests—to the extent that members of a Khap took the law into their own hands—was guaranteed by the Khap Panchayat.

Case 2: Jondhi This case was related to the marriage of a boy belonging to Jondhi village in Jhajjar district of Haryana. Jondhi, Jat-dominated village, was, according to popular memory, founded some 500 years ago by a Jat named Jona. Jona, who belonged to the Gahlawat gotra, allowed a man of the Dagar gotra—who came from Meerut in Uttar Pradesh—to settle in the village. Of the 7,000 acres of land that Jona owned, Dagar and his family were given 2,000 acres. While the majority of people in this village belong to the Gahlawat gotra, artisan castes, Scheduled Castes and Brahmins also live in this village, although they are in a minority. The Dagar gotra, although it had less land and was in a minority, was ahead of the Gahlawats in terms of education and good jobs. This success created tension between the Dagar Jats and the Gahlawat Jats. Between the two gotras, however,


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there prevailed the custom of village bhaichara, which meant that they could not intermarry. The violation of this bhaichara rule attracted a heavy penalty. Ashish, a taxi driver in Delhi who belonged to the Dagar gotra, married Darshana of Dabri village in Delhi on 1 February 1998. Since both families were poor, the marriage was simple, with 15–20 persons in attendance as Baratis. Darshana gave birth to a child after a year. Suddenly, it was disclosed that Darshana belonged to the Gahlawat gotra. This created a lot of tension. The Gahlawat Jats summoned a village panchayat in July 2000 in which a committee of about 25 persons was appointed. When the concerned parties consistently failed to appear before the panchayat, the latter took the following decision in absentia: (1) That the marriage of Ashish–Darshana was to be declared null, and that the couple could no longer be treated as husband and wife. (2) Darshana would no longer keep herself veiled because she was now like a daughter of the village; she would unveil herself in the presence of the village panchayat. (3) Darshana would tie a rakhi to Ashish, declaring him in public as her brother. (4) Since Darshana would become a daughter of the village, it would become the responsibility of the Dagar Jats to marry her off again. The expenditure would be borne by Ashish’s family and the villagers would help her in finding a suitable match. (5) Ashish’s family was asked to leave the village within a week and deposit Rs 5,000 in the account of his and Darshana’s son. (6) The family was ordered to sell its property within two weeks, pending which it would be confiscated by the panchayat. (7) If the family failed to leave the village, the panchayat would not take responsibility for their lives and property. (8) Darshana’s family at Dabri village was expelled from the community (bhaichara) of the Gahlawat gotra forever for having brought disgrace to it. The Dagar family then mobilised itself and called a Khap Panchayat of the Dagar and Gahlawat gotras at Jondhi on 23 August 2000. The entire Dagar gotra appealed for a relaxation in the punishment. The Gahlawat family of Darshana also repented this act of marriage. The Khap Panchayat asked both gotras to submit a written declaration that the decision of the Khap would be binding on both parties. Both parties agreed. A committee of 11 members was constituted by the Khap Panchayat after a long deliberation in the panchayat. The decision of the Khap Panchayat was: (1) That Darshana’s family was to be excommunicated from the gotra; it could no longer be called Gahlawat. No person of the Gahlawat gotra was to associate with this family.

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(2) Ashish and Darshana would continue as husband and wife but could not stay in Jondhi village and could not visit the village under any circumstances. Their son, however, could stay in the village. (3) All other members of Ashish’s extended family in the village would face a boycott from village brotherhood for two years. Other people of the village would not share Huqqa-pani (smoking pipe and water) with the people of the Dagar family. A meeting of the Khap Panchayat was called on 9 November 2004. The panchayat constituted a committee of five persons each from the Gahlawat and Dagar gotras. After long deliberations, the committee announced that while the judgement of the earlier Khap Panchayat held on 23 August was right, the circumstances had now changed. The couple could, therefore, stay at the outskirts of the village, on condition that they withdrew the case from the court. The panchayat re-emphasised the importance of village bhaichara and village exogamy. The district administration normally does not interfere in the functioning of the Khap Panchayats.

KHAP PANCHAYAT AND MODERN LAW: A CONTRADICTION Traditional panchayats, from the Sarv Khap Panchayats to village-level panchayats, have existed in India for many centuries. The importance of these panchayats was recognised by various rulers, especially the Mughals and the British.31 Although the British tried to create a modern legal system of dispute resolution by setting up courts of law, they rarely interfered in the functioning of the traditional panchayats. Before Independence, these traditional panchayats acted as a unified force in favour of or against the then rulers. The major basis of their strength was the concept of bhaichara on gotra, caste or territorial basis. This system believed in gotra, village and Khap exogamy but caste endogamy. In addition to this, the panchs—the five judges in a panchayat—were considered to be gods and their authority went unquestioned. The basis of this legitimacy for the panchs was drawn from their reputation for fair play, the absence of expenditure in proceedings and their attempts to arrive at negotiated settlements between contending sides involving the larger community and the maintenance of bhaichara at all levels. These panchayats not only acted as agencies of dispute resolution at the community level, but also helped in maintaining peace and harmony between different caste or communities living in their jurisdiction. Therefore, these traditional panchayats were considered the supreme authority by the people in the rural areas. The Mughals recognised the popularity and authority of the Khap Panchayats; therefore, emperors like Akbar and Bahadur Shah accorded them full freedom. In a letter to the pradhan of the Balyan Khap, Akbar wrote: ‘Every community and the khap of the


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Jats of the Doab have the freedom to carry out their function according to their ancient customs and laws within their respective councils.’32 The introduction of modern law and the creation of courts by the British affected the functioning of the Khap Panchayats. After Independence, education, the recognition of individual rights, adult franchise, the introduction of panchayati raj institutions at village, block and district levels, state and Parliamentary elections, urbanisation, economic independence and other such factors provided opportunities to the individual to come out of traditional system and the moral ideology of bhaichara. Today, individuals have other options to pursue their goals, options that were earlier confined to the family, the village or the Khap. However, the question that arose after the introduction of the modern legal system and other democratic institutions was that now that the individual could express his or her desire, and could get disputes resolved without the pressure of gotra, caste or community, why and how were the Khap Panchayats to continue to be relevant? Analysing the support base of Khap Panchayats, it is obvious that the pradhans of the different Khaps and the masses at large feel that these panchayats take decisions on the basis of common moral values, old traditions, and customs prevailing in the society. The concept of bhaichara at the village and Khap levels is another factor in favour of maintaining solidarity within the community. Panchayats are held in the open, and people from different walks of life can participate in them: this makes it possible for the issue to be debated at length and consensus to be arrived at before a decision is announced. Khap pradhans are of the opinion that these Khap Panchayats do justice and do not announce decisions contrary to those pronounced in the courts of law. Since these decisions do not involve victory or defeat for either of contending party, there is scope for both parties to consent to the decision of the Khap Panchayat without continuing their hostility. These pradhans justify the relevance of the Khap Panchayats by comparing the dispute resolution by the courts and the Khap Panchayats. They say that getting justice in a court of law is beyond the reach of the common person. It is very time consuming, involves huge expenditure, and there are procedural problems like the destruction of evidence and witness hostility. The common people are not familiar with functioning of the legal institutions. Even if a decision is announced by a trial court, it can be challenged in a higher court by the other party. Legalities, therefore, not only consume a lot of time and resources, they could eventually leave people unsatisfied with a decision. Furthermore, even after coming out victorious, the hostility between the two parties could continue for many years.33 Since modern law recognises the individual and his or her rights, and is based on rationality, the legal system, therefore, undermines the importance of the traditional concept of bhaichara— especially traditional marriage norms based on village, gotra and Khap exogamy and caste endogamy. The moral ideology, which formed the basis of all these and other behaviour patterns, loses its force

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before modern law. In addition to the above factors, the individualistic approach to achieving one’s goal has further affected the importance of the Khap Panchayats in modern times. The major contradictions which the Khap Panchayats are facing are that they still hold tradition and a particular morality very dear. The cases related to marriages where the individuals or families have violated the old tradition of village and gotra bhaichara on the other hand legal system favours the action taken by these individuals or families. The intervention of the courts in these cases has challenged the authority of the Khap Panchayats for having taken decisions which violate the rights of individuals. On the one hand, the Khap leaders have to behave according to the will of the dominant groups, a will that is based on traditional norms and customs and from where they draw their support. On the other, modern law tries to protect the human rights of the individual, especially when traditional systems violate them. These dichotomies have, in some cases, raised criticism of certain decisions of the Khap Panchayats. In October 2004, the Punjab and Haryana High Court asked the Government of Haryana about the functioning of the Khap Panchayats, which at times take law into their own hands and pronounce decisions, which violate human rights. Neither the State not the political parties want to come out openly against the Khap Panchayats. The Khap Panchayats also do not want to come out openly against the verdicts of the courts. If we want to make the dispute resolution system more rational and effective, we have to involve local communities in such a manner that they also acquire some legal knowledge and understanding of human rights. There are positive aspects of traditional dispute resolution systems which cannot be completely discounted. Rather, we should be able to strike a balance between these communitybased forms of dispute resolution and modern justice systems.

NOTES & REFERENCES 1. Khap is a particular area inhabited by a lineage or caste or cluster of castes. 2. I have used gotra as synonymous with clan, meaning thereby that all those who claim to have descended from one common ancestor are known as gotra or clan. I have used gotra and clan interchangeably. 3. See Thapar, Romila. 1984. From Lineage to State. Bombay: Oxford University Press. Also, Sharma, R.S. 1965. Indian Feudalism. Calcutta: University of Calcutta. 4. Walker, Gordon. 1884. Ludhiana Settlement Report, pp. 45, 79. 5. The text of the emperor’s mandate has been quoted in Pradhan, M.C. 1966. The Political System of Jats of Northern India, p. 97. Delhi: Oxford University Press. 6. The record was available with the pradhan of Khap Balyan in Shoran village in Uttar Pradesh with the seal of Emperor Akbar. cf. Pradhan, M.C. 1966. The Political System of Jats of Northern India, p. 98. Delhi: Oxford University Press.


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7. Malaviya, H.D. 1956. Village Panchayat in India. New Delhi: Economic and Political Research Department, All India Congress Committee. 8. Lewis, Oscar with the assistance of Victor Barnouw. 1965. Village Life in Northern India, p. 29. New York: Vintage Books/Random House. 9. According to Lewis, (Lewis 1965, op. cit., p. 23), the word Dabas refers to the gotra belonging to the Jat caste, which is non-localised, exogamous and patrilineal. 10. Chauhan, B.R. 1967. A Rajasthan Village, New Delhi: Vir Publishing House. To him, chokla is a word of regional usage which is used in place of panchayat and is a unit of caste (sub-caste) spread over a number of contiguous villages binding the members of the caste (sub-caste) to certain codes and regulations who fall under the jurisdiction of the caste (sub-caste) organisation in that area. 11. Sachchidananda. 1979. The Changing Munda. New Delhi: Concept Publishing Co. 12. Murti, Mantra. 1982. ‘Traditional Panchayat System of the Budagas of the Nilgiris’, Indian Journal of Political Science, July–September, XIII(3): 48–61. 13. Fox, Richard G. 1971. Kin, Clan, Raja and Rule: State Hinterland Relations in Pre-Industrial India. California: University of California Press. 14. Aggarwal, Partap C. 1971. Caste, Religion and Power: An Indian Caste Study. New Delhi: Shri Ram Centre for Industrial Relations. 15. Baljit-Singh. 1961. Next Step in Village India: A Study of Land Reform and Group Dynamics. Delhi: Asia Publishing House. 16. Mayer, Adrian C. 1965. Caste and Kinship in Central India: A Village and Its Region. London: Routledge and Kegan Paul. 17. Hayden, Robert M. 1999. Disputes and Arguments Among Nomads: A Caste Council in India. New Delhi: Oxford University Press. 18. Miller, D.B. 1975. From Hierarchy to Stratification: Changing Pattern of Social Inequality in a North India Village. Delhi: Oxford University Press. 19. Pradhan 1966, op. cit. 20. Pradhan 1966, op. cit., pp. 114–15. 21. Pradhan 1966, op. cit. 22. Schapera, I. 1956. Government and Politics in Tribal Societies. London: C.A. Watts and Co., p. 123. 23. Pradhan 1999, op. cit., p. 105; Hayden. Disputes and Arguments among Nomads, p. 49. 24. Mandlebaum, David G. 1972. Society in India. Berkeley: University of California Press; Dumont, Louis. 1970. Homo Hierarchicus. Chicago: University of Chicago Press. 25. Dumont, Louis. 1980. Homo Hierarchicus: The Caste System and Its Implications (2nd edition). Chicago: University of Chicago Press, pp. 27 and 177. 26. Quoted in Pradhan 1966, op. cit., p. 258. 27. Pradhan 1966, op. cit., 259. 28. Ibid: 257. 29. Oberoy, Chander Bhan. 1997. Loharu Bawani Ka Itihas, pp. 130–75. Rohtak: Acharya Printing Press. 30. Dainik Jagran, 30 May 2006. 31. Pradhan 1966, op. cit., pp. 96–97. 32. Pradhan 1966, op. cit., p. 97. 33. These views were expressed by Khap pradhans at a seminar organised by the Department of Sociology, Maharshi Dayanand University, Rohtak, in March 2005. The seminar was entitled ‘Khap Panchayats: Challenges and Prospects’, in which, in addition to the Khap pradhans, affected parties, social activists, academicians and lawyers participated. See also T.K. Rajalakshmi. 2005. ‘Caste Injustice’, Frontline, 23 April–06 May 2005. 22(09): 51–52.

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SECTION V

Human Rights and Criminal Jurisprudence

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15 Crimes, Passion and Detachment: Colonial Foundations of Rule of Law Ranabir Samaddar I (a) A desires a Court to give judgement that B shall be punished for a crime which A says B has committed. A must prove that B has committed a crime. (b) A desires a Court to give judgement that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies to be true. A must prove the existence of those facts.1 These seemingly simple, self-evident, and extraordinarily mischievous lines were among the formulations that laid the ground of rational rule by the colonial authorities in India. They are appended at the end of Section 101 of the Indian Evidence Act, which says, on the matter of burden of proof: Whoever desires any Court to give judgement as to any legal right or liability dependent on the existence to facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. These, and other lines in the Act on the question of evidence, achieved a stupendous feat: they succeeded in setting up the individual as a legal category to be inspected, monitored and judged on the basis of a code by a new form of power, judicial power, from then on. Promulgated in 1872, the Indian Evidence Act demonstrates something that I have tried to argue elsewhere—that the

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way in which colonial rule in India built up the notion of responsibility made it one of the main pillars of rule; and that the discourse of responsibility always succeeded in making the ruled continuously strive to become civilised and rational while giving the ruler an intrinsic advantage in terms of legitimacy and governance.2 The ruler assumed the responsibility of providing good rule; the ruled would have to now assume responsibility for good conduct and growing up. In the lines cited above, we can see how the notion of responsibility was being framed. The State had brought the charge against the accused; it was responsible for furnishing the evidence; therefore, it had the right to punish. The peasant had robbed the wealthy of land; the wealthy would prove that the land was his; and the court would order the land back into the possession of the wealthy. Rule of law meant being responsible to the law, and law meant due process. Thus, for instance, in the case of expounding the notion of responsibility in the form of ‘burden of proof ’, the Evidence Act did not stop at that alone. It explained with whom the burden of proof lay; burden of proof as to particular fact; the burden of proving fact required to be proved to make evidence admissible; in fact the Act laid down rules relating to the burden of proving in different possible situations. Responsibility by defining burden was thereby making contract, law, individuality, due process, and transparency pillars of new rule against which the individual in form the accused as a criminal or wrecker of property was situated. On the one hand, it seems that ruling in this way was new because it involved rationality; and the Evidence Act is the best demonstration of how reason was made to work in the process of ruling. On the basis of reason, a new form of power grew, namely, judicial power. On the other hand, as I intend to show in this essay on the Evidence Act, reason was only another adjunct to the material or the extremely physical way in which rule was to be transacted and the politics of rule conducted. Not only was physical conquest the basis of the ascendance of reason, but reason itself also depended on close physical scrutiny of various kinds. In this way, the Evidence Act remains the great instance of the physicality of Indian politics.

II It would be instructive to go back to the colonial era, since locating criminals through categories and technologies was at heart of the issue of the stability of rule by the conqueror, and it was in the colonial era that the expeditionary character of liberal jurisprudence was its clearest and the missionary character at its purest. Who was the criminal? To the colonial rule in the middle of the 19th century, the criminal was still an incomprehensible figure, beyond the grasp of a weak administrative machinery, inhabiting the boundaries of morality and evil, much of which the colonial rule was still labouring hard to understand. The criminal was within the ‘native’ society,

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which was marked by distinct patterns of caste and domestic violence, and, in terms of everyday governance, was in collision with a type of civic-mindedness that the colonial rule was trying to cultivate in society. The colonial rule was not only responsible to the Crown but to to its subjects, too. Therefore, its mission was to motivate the people and the ‘society’ to engage with crime and the criminal. Laws, the legislating process and trials had to all be public, and evidence was to be made public. In this way, judging criminality was a public process, which was only possible if the ‘public’ was present in the process. Criminal legislation had to operate simultaneously in two different registers: on the one hand, it had to argue that criminality was occurring in distinct cultural milieus of society and in communities (thus, the idea of criminal tribes, for instance); on the other, the trial and the punishment process was to be public, non-communitarian, legal and scientific. Thus, questions such as who comprised a criminal, how criminal elements enmeshed with the public, what methods were illegal, and so on, were issues that defined the power of the sovereign authority, marking, at the same time, the everyday governmentality of rule that needed to cope with crimes unsettling the society. One has to only read the famous Bengali four-volume, non-fiction narrative of criminals serving jail sentences and, in some cases, waiting for execution at the gallows3 to get an idea of the morality of assigning the criminal a place under the sun, not excommunicating him but appreciating his place in the cosmos—a kind of indulgence with which the hard Protestant morality was unfamiliar and which led to the latter frowning upon the former. In the 19th century colonial world of India, the conqueror had to know closely the bodies of the poor, the troublesome and the criminal, a task that the fast-developing print culture and the science of photography made easy. While anatomies in the earlier time were subject to inspection under many different circumstances, such as theft, sexual intercourse, hard labour, punishment, marriage, the amusement of the rich, duties in the service of gods and goddesses and so on, these acts of scrutiny in the age of responsible democracy became public because they served a public purpose—that of identifying the criminal, the enemy of the public. The criminal had to be found quickly, investigated, interrogated and sentenced—all in an objective and public way. The body was to be carefully described if the criminal was to be punished at all. Furthermore, the need for the witness to carefully describe the criminal was in part because people were not what they seemed; in this oriental land, the person facing the authorities was not what he appeared to be at first glance: men passed as women, women as men. And, thus, the right body had to be ‘discovered’, that is to say, the right identity had to be found. Piercing the milieu of concealment, the rules of evidence would discover the ‘real’ person below the surface. All these made bodies, appearances and identities problematic for the colonial society. Detecting the crime and the criminal was important because the technology of detection was a miniaturised way of knowing the ‘true’ bodies of individuals or groups, as if that could lead to the unravelling of the mystery of the ‘true’ mind of the criminal individual or the group—what kinds

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of bodies harboured what kind of minds and what kind of minds called for what kind of bodily practices. If such bodies were made visible, described and represented, the process of judgement was necessarily rendered public. The key was the process of inspection—a good inspection led to good evidence, which is why the act of crime and the body of the criminal had to be watched well, which often involved relationships of unequal power. In the court, therefore, the criminal had to be present; the first step towards making the whole thing public. In the past, the physical selves of the criminals and the accused were kept out of view for a variety of social and personal reasons, but the imperatives of modern rule ensured that the people were to be deprived of the right to keep their bodies private. To solve the riddle of a crime, the body of the person subjected to the crime or the place or the document associated with the crime had to be equally investigated well. Also, particular audiences were needed for particular bodily knowledge (thus, expert witness had to be summoned). Colour, shape, traits, position, speech pattern, diction, hairstyle, time, moment, etc., would become crucial. The ground for evidence collection and formulation being laid in this manner; soon, the physicality of the task of ruling would hinge upon ‘the finger’—a part of the body never thought to be of lasting importance to the identification of a particular soul.4 New forms of control and power over unruly bodies also developed around this time parallel to the development of the power of investigation, examination and judgement. Prisons developed. The juridical-political structure of confinement combined at once two opposite things: the public nature of judgement, and the confining of the accused and the criminal away from the public eye, at times in a penal colony far way on an island, creating in the process new ‘criminalised’ groups whose bodies would be minutely detailed in records that would only to be brought to the public eye as evidentiary material once another criminal case came up,—an unending cycle of making public and keeping away from the public the criminal matters of society. These places of confinement would be within the country and society, yet ‘outside’ it, with their own specific laws of confinement in dormitories, cells, iron gates and grids of regulation combining with the complex interweaving of language, caste and kin. The jails and penal colonies developed by the colonial authorities enabled them to dislocate the criminals while localising them again in a way that enabled the claims and limits of the ‘human’, to be tested and revealed in lethal form. The combination of making criminality public and confining the criminal was neither a paradox nor an anomaly that belonged to the past: it was the very essence of democracy and democratic rule. Evidence and punishment in the form of the jail sentence were the public and the private of the newly emerging political rule called democracy, in the development of which the colonial experience was of cardinal importance. As I am trying to persuade my readers here, the Law Commissions, backed by utilitarian thinking, were the major instruments that, from the 1830s onwards, turned reason and rationality into major strategic weapons in stabilising colonial rule. Reason would from now on dictate new forms


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and processes of punishment, still closely centring on the body but making the inspection, diagnosis, judgement, and punishment a matter of a rational process. Together, the Indian Penal Code (IPC), the Indian Criminal Procedure Act, and the Indian Evidence Act were inextricably linked to the colonial strategy of power and rule, namely, imposing responsibility, making responsibility public, disciplining the irresponsible and then punishing them.5 But since evidence was a matter of inquiry, logic, proof and cross-examination, merely being public was not enough. It was necessary to draw conclusions, infinitely sophisticated and minute, from the fact that the process was public. Thus, for instance, the word ‘confession’ was left undefined in the Evidence Act. A confession was meant to be an admission made at any time by a person charged with a crime stating or suggesting the inference that s/he had committed the crime, while an admission was supposed to be a statement of fact that waived or dispensed with the production of evidence by conceding that the fact asserted by the opposing party was true. An admission could be oral or contained in documents. Although both concepts appeared similar, a thin line demarcated them, specifically with regard to their evidentiary value, before a court of law. While a confession was a statement made by an accused person, which was sought to be proved against him in a criminal proceeding to establish the commission of an offence by him/her, an admission related to a transaction and comprised all statements amounting to admissions. A confession, if deliberately and voluntarily made, was to be accepted as conclusive of the matters confessed. But it was not a conclusive proof of matters admitted to and the person making an admission was deprived from taking a contradictory stand thereafter. While a confession went against a person making it, an admission could be used on behalf of the person making it under certain circumstances (as mentioned in Section 21 of the Evidence Act). The Act, of course, declared vide Section 24: A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused by an inducement, threat, or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him. We can notice the liminality of the situation as envisaged in Section 24, or the following sections (up to Section 30), which, significantly, dissuaded the authors of the Act, from providing any illustrations. This is unlike the other instances, in the entry titled ‘Admissions’, under which the sections relating to confession feature. Clearly the authors of the Act could formulate the principle, but could not illustrate it. In fact, we would need an analysis of the relevant case law in the past 125 years to see why the Act required, in the first place, such a fine distinction between admission and confession.

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In any case, this was an instructive instance of a situation where the limits of the language had made common cause with ‘normal’ concepts such as confession and admission, with the requirements of objectivity and logic helping the justice process overcome such limits. The history of the Evidence Act, in this manner, teases the limits of the meaning of confession by raising a number of issues: the nature of confession evidence; the psychological aspects of confessions and interrogation; the nature and character of confessions and the obtaining of confessions (interrogation and the regulation of questioning); the detailed study of the detention and questioning provisions of the Criminal Procedure and Evidence Acts; the practices in vogue for the detention, treatment and questioning of suspects; the proving and disproving of confession evidence; the recording of questioning by different means, the corroboration of confessions; and, finally, the admissibility of previous police debacles over discredited confessions and the evidentiary significance of silence.6 We can see here the historical progress in the techniques of rule. We have progressed far from the ancient days when confessing was an act of clarifying the existence and duties of the flesh. Then it became the expression of the anxieties of the soul. Finally, confessing became expiation. Here, the act of (securing) confession is a technique of proving crime by way of admitting to it, and then punishing the criminal by way of the criminal voluntarily courting punition. It is a process in which an earlier technique is being reshaped in the fire of logic, counter-intuition, argumentation, examination and proof. Yet, is it not true that the more the law tried to distinguish between confession and admission and went on to detail the economy of confession, something seemed to have been left out, beyond these details, and the extremely minute differentiations and hair-splitting? Rule of law had to communicate not only a promise of rights—in this case, the rights of the accused—but also a subjection to rule. Thus, details were important. As we shall see later, confession was to become one of the most-abused parts of the protocol of evidence in trial and punishment. In any case, knowing the nature of confession was important for the new age of reason.7 In 1773, ‘on perusing the trials’, Warren Hastings was ‘struck with surprise to observe, that almost every malefactor confesses himself guilty of the crime for which he is tried, although he thereby subjects himself to the loss of life’. He added: As this is a circumstance so extraordinary in itself and so very repugnant to the principle of self-interest by which mankind in general are actuated, I cannot help mentioning it in hopes of obtaining some account of the manner in which this confession is procured, whether it is not made till after conviction, whether extorted, or whether won by fair promises of forgiveness.8 Confession made the elaborate protocols of reason meaningless; therefore, confession was to be made judicially less significant while the information that formed part of confession was to be of help in finding other criminals and busting crime gangs. Thus, the practice of securing, extorting


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and fabricating confessions remained widespread, notwithstanding the Bengal Regulation IX of 1793, although this became less significant in the actual process of trial. Clearly, in what was considered as the ‘pre-age of reason’ in the colonies, arbitrariness appeared excessive—a situation that required the Governor-General in Council to instruct the Indian Law Commissioners on 20 March 1847 to prepare a scheme of pleading and procedure with forms of indictment adapted to the provisions of the Penal Code. Thus came into operation on 1 January 1862 the Act XXV of 1861, better known as the Indian Criminal Procedure Code. Reason henceforth ordained equality before the procedure of law: the peasant could now approach the law; the procedure became detailed and, hence, time-consuming and expensive; fear of god now gave way to fear of law. All in all, the age of rule of law in coping with criminality had begun.

III Rule of law, however, began with rule by regulations. While the project of establishing the rule of law began first with the compiling of all old laws and deliberating on them, it had to issue a series of regulations to survive its foundational years. These regulations were so important to colonial rule that while the authorities established three law commissions by the 1860s and gradually formed proper legal authorities so that rule by regulations could now be substituted by rule by laws, the reliance on regulations remained extant long afterward, and the first confident steps of a legal regime in suppressing criminality could be taken only in form of a joint rule-of men, regulations and laws. The 100 years spanning the last quarter of the 18th century and the last quarter 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. This was not to be a foreign despotic administration but an enlightened rule to sanitise a country caught in the mire of passion, frenzy and an unfamiliar ethos. The new enlightened methods would depend on abstraction, classification, typologies and controlling the bodies of the unruly elements through a new system of punishment. Therefore, for instance, whereas the Ain-i-Akbari (the classic Mughal treatise on the system of law and justice)9 instructed the judicial delegates of Emperor Akbar ‘not (to) be content with oaths and witnesses’, to hold full investigation, to be diligent, and to possess ‘just insight’, it did not say anything about actual modes or procedures and the way in which reason could work in investigation, argumentation and determination. The decisions of the judicial delegates would be final. Later, in 1772, with the arrival of the colonial power, the Nizamat Adalat was created as the highest court of criminal justice in the Bengal Presidency: its decisions were to be regarded as precedents. The Nizamat Adalat did not try any case but passed final orders on some cases tried in the District Criminal Courts. In the early colonial days, ad hoc arrangements were the main method of rule,

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and took the form of regulations that controlled police behaviour. For instance, Regulation XX prohibited the Darogas from taking cognisance of any charge of adultery, fornication, calumny, abusive language, slight trespass or inconsiderable assault. Persons bringing forward such complaints were to be referred to the magistrate. Or, under the Regulations of 1790, magistrates were required to apprehend the ‘disturbers of peace and persons charged with crimes and misdemeanours’, but ‘confessions were to be received with caution’; the magistrates were to ‘arrange by public advertisements for the attendance of all parties, witnesses, etc., on the arrival of the court of circuit…’ The Nizamat Adalat, apart from laying down some broad rules of criminal trial—(a) to ascertain if the prisoner had committed any offence, and (b) if the prisoner was found guilty, to sentence him, and if not, to acquit him—did not have much to say about the details. The Mufassil criminal courts of the East India Company were unfettered by any definite set of rules of evidence, but they operated on the basis of certain rules drawn from earlier law officers which now formed a sort of vague, customary law of evidence. The English law of evidence was not in force. Unless a prisoner declined to put any question to a witness whom he had cited in his defence, alleging that he had been tampered with by the prosecutors, it was held to be objectionable for the Sessions Judge to examine the said witness as a witness against the prisoner. The testimony of one eyewitness, corroborated by circumstances, was held sufficient to establish a charge of homicide. In case of homicide, the finding of a skull recognised as being that of a missing boy by a peculiarity of the jawbone was held insufficient as proof of identity of the victim. By itself, a dying declaration could not be declared as evidence. The evidence of a single witness professing to recognise two individuals as belonging to a gang of robbers was insufficient. Any testimony in case of robbery during first examination before police officers was to be received with utmost circumspection. In case of theft, property found in the drain of the house of the accused was not an evidence of guilt. In case of rape, a compromise filed by the injured party in consequence of the accused person’s promise to marry her was inadmissible in a court. In this way, the Nizamat Adalat had laid down some rules of evidence for homicide, robbery, theft, rape, forgery, perjury, extortion, oath, jury, deposition, and so on. These improved upon Regulation IX of 1793, which had laid down certain provisions relating to laws of evidence. There were also provisions relating to confessions, their value depending on time, place and person. Further, as general principles, the Nizamat Adalat had laid down that if there were gross contradictions in the testimony of the witnesses, the evidence was not to be taken as credible, and prisoners were to be acquitted even against the fatwa of the law officers. The evidence of a minor was inadmissible. There were many such principles that were laid down. To get an idea of the strategic importance, in the eyes of the judicial reason of the task of situating a confession in the right place in the entire protocol of evidence gathering, placing and examining, we have to imagine the situation as it existed in the late 18th century and the early part of the 19th century. By that time, the nefarious practice of extorting and fabricating confessions


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was widely prevalent in the mufassil. An erroneous idea somehow prevailed in the mufassil that a confession was the strongest proof of guilt, and that all that was required was to obtain one, and, if possible, to get it confirmed before a magistrate. The Company official, E. Watson, wrote in his report of the 11 September 1810: It would be endless entering into a detail of the different modes, in which confessions are fabricated and proved. The usual course appears to be, first, to apprehended as many people as caprice may dictate, and then to select from the number, those individuals who are to confess, and determine on the purport of their confessions. The preliminaries being thus arranged, the victims are made over to the subordinate agents or instruments of police, to be dealt with according to circumstances; and the rest are discharged. It sometimes happens, that they meet with a man whom they are able to deceive, by assurances of immediate pardon, and false promises of future favour and indulgence; in such case, he is usually told, that, by signing a paper prepared by a buckshee for that purpose, or repeating before witnesses what he is instructed to say, he will not only escape hanging, or at least perpetual imprisonment, but become one of the chosen of the police, and make his fortune as a goyendah (informer, spy); that all he has to do, is to pretend that he was concerned in the dacoity, and say, that the gang was composed of particular individuals, who are named to him, and leave the rest to the darogah; that there can be no harm in this, because all the world know they are the real dacoits; and, in short, the alternative is offered him, either of making a friend or an enemy of the police; either of suffering an ignominious death through their power, or of raising himself to a post of honourable ambition and profit, by their favour. By these, and similar artifices, they catch a dupe, who suffers for his credulity; but when these means fail, which they generally do, they have recourse to compulsion. In this even, the prisoners are taken out singly, at night, and subjected to every species of maltreatment, till they consent to subscribe before witnesses, to the contents of a confession, drawn up for their signature by the buckshee, or to learn it by heart, and repeat it, in their presence. When the prisoner is thus prepared, if there appears no danger of his retracting before morning, he is left in peace, for a few hours; but if any apprehension of that sort is entertained, a burkundaaz is sent for three or four people of the village to witness the confession instantly, and they are aroused from their sleep, at all hours of the night for that purpose. It is to be observed, however, that for that purpose sending for impartial witnesses does not often occur, except where the darogah has not sufficient weight or talent to keep his peace, and the same time set appearances at defiance. A darogah who is sure of his post, will, with the utmost impudence, send in a confession, witnessed only by a few pykes or other police dependants, who were perhaps the very instruments by whose means it was extorted. Sometimes a broken port, an old rag, or some other article of little or no value, belonging to the person robbed, is procured by a goyendah or other inferior agent of police, and deposited in a half-dry tank or ditch, to which the prisoner is afterwards taken, for the purpose of bringing it out with great formality, in the presence of witnesses. Trash of this

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sort is sometimes thrown into the compound of a man’s house, or other part of his dwelling, in the hurry and confusion of a shame search for stolen property, and brought out with his own things, by way of corroborating a confession.10 The trouble was that confession was seldom successfully employed as a ground for ascertaining the truth, but it was considered authentic in itself and would be sent to the magistrate, who would commit the accused to be tried by the court of circuit. In 1808, the general rules regarding confessions were, first, where a prisoner could read and write, the confession was invariably to be in his own handwriting, and not that of any other person. Second, whether or not he could read and write, the confession was to be witnessed by one or more persons, who could sign their names, and were not tools of the police. Third, the paper to which original signatures might be affixed was to be sent to the magistrate, and not a real or pretended copy. Any other document than the original was absolutely inadmissible as evidence. Fourth, darogas of the police were to state, at the end of every confession, the hour at which it was taken, with the date and hour of its being witnessed. Fifth, where it had been taken at night, the special reason for its having been so taken was to be stated in the daroga’s report, with a note of the date and hour at which the prisoner was apprehended, and date and time of taking the confession. Lastly, the Magistrate was to be careful in examining the witness, to satisfy himself that the signature to a confession was not obtained by misrepresenting the contents of the paper or other fraud. One can see the evolving nature of the truth game. Wherever and whenever it was a question of finding out the truth (here, truth of the crime and the criminal), the game of reason, examination, analysis and counter-arguments would commence immediately; and it was on the site of evidence that the game would be played. Thus, even though the equation of truth and evidence, or equating evidence with truth, is a more modern thing in terms of morally ruling a society, the elements were all there. Only, rationality had to reorganise the various elements in place in order to bring about the most ruthless yet the most popular form of the truth game of our age. As I have indicated briefly earlier, ruling a society in this way may seem to be laborious. Why was such a laborious process needed, invented and improvised? It meant inventing constraints, and putting these constraints on passions. The workings of these constraints also signified that they might require labour to be put in place, but if these were deep enough they would work as strong buffers to passions. And what better constraint could be in place than the one created by the labour of ‘interest’, to be precise, the labour of ‘self-interest’? Self-interest, if properly encouraged, instituted and made to work strategically could moderate society, reduce crimes, or at least make them controllable. Thus, it was not submitting to law alone that had its origin in the secret history of self-interest. In the actual legal process of judging a crime, the witness would answer truthfully


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due to enlightened self-interest; or a member of a gang would turn approver because self-interest would motivate him towards being an approver; or the guilty would confess again on a calculation of gains and loss; and the question of motivation would appear again and again in the judgement of evidences produced before the court, because motivation was the sign of self-interest. Self-interest meant calculation, comparison and clarity of outlook; the examination of evidences, therefore, often involved questions regarding calculation, comparison and opinion, because interest, as David Hume remarked long ago,11 was formed in many cases by opinions. Thus, imperial reformers such as Adam Smith, Jeremy Bentham, James Mill, John Stuart Mill and others repeatedly stressed the virtue of submitting to order because only through such submission could people be saved from anarchy—the result of unbridled passion. Awareness of self-interest would draw people from passions which were listed as: animosity, enmity, attachment, love, the relish of telling others what to do and thus getting involved and the relish of being told so, excessive pride, megalomania, dejection, vilification, extreme indignation, primordial inertness or restlessness, delight in conflict, hatred, the obsessive desire to break rules and too much identification with victor or the victims.12 These lead to crimes. Crimes could be controlled and punished by awakening self-interest in society. Self-interest was reason, practical reason; but as we have seen, it was also procedurally a ruthless and deadly game.

IV In arousing self-interest, procedure is important. Reason, by the same logic, is first of all procedure, and this from day one was clear to the makers of the Indian Evidence Act. Act 2 of 1855 and the Select Committee’s draft report (1871) took cognisance of the role of procedure in law as distinct from substance. Bentham in England had suggested few years back13 a division between substantive law and adjective law, where the latter included rules of procedure and practice. It was by this that civil and criminal procedure laws were separately made and developed. Evidence was, above all, a matter of procedure—the procedure of arriving at the truth. And because procedure was important, Maine—later to become Sir Henry Summer Maine—in introducing the first draft bill of the Evidence Act on behalf of the Indian Law Commissioners remarked in 1868: No doubt much evidence is received by the mofussil courts, which the English courts would not strictly regard as admissible. But I would appeal to the members of the Council, who have had more experience of the mofussil than myself, whether the judges to those courts do not as a matter of fact believe that it is their duty to administer the English Law of Evidence as modified by the Evidence Act. In particular, I am informed that when a case is argued by a barrister before

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the mofussil judges and when English rules of evidence are pressed on the attention he does practically accept those rules and admits or rejects evidence according to his construction of them. I cannot help regarding this state of things as eminently unsatisfactory. I entirely agree with the Commissioners that there are parts of the English Law of Evidence, which are wholly unsuited to this country. We have heard much of the laxity with which evidence is admitted in the mofussil courts, but the truth is that this laxity is to a considerable extent justifiable. The evil, it appears to me, lies in admitting evidence, which under strict rules of admissibility would be rejected than admitting or rejecting evidence without fixed rules to govern admission and rejection. Anything like a capricious administration of law of evidence was an evil, but would be an equal evil, or perhaps even a greater evil, when such strict rules of evidence should be in force as practically to leave the court without materials for a decision…14 The dilemma before the Select Committee was clear: it wanted to consolidate the English Law of Evidence, but the question was how to achieve that in a situation compounded by the double absence of any law of evidence and the absence of standard practice in courts which followed at least three systems—Hindu, Muslim and the British. Modifications were necessary: these modifications were aimed at gradually introducing a full-scale law of evidence which would stress on individual depositions, freeing them from the supposed threads of kinship, or coercion or family linkages. Indeed, just the Indian Evidence Act came following preparations dating from 1841; it was followed by amendments on 15 occasions—in 1872, 1887, 1891, 1899, 1919, 1926, 1927, 1934, 1949, 1951, 1953, twice in 1983, and in 1986—before the amendments required by the fullscale antiterrorist legislations set in. Some of the amendments necessitated by the Dowry Prohibition Act and legislations in the 1990s such as the Terrorist and Disruptive Activities (Prevention) Act (TADA) or the Prevention of Terrorism Act (POTA) show the continuing necessity of tailoring the laws of evidence according to the political and governmental priorities of the State. That was perhaps how reason evolved anywhere and everywhere. The Select Committee had observed long ago (15 July 1871) while taking note of the inadequacy of the earlier efforts to draft a suitable legislation: …(The) Commissioners’ draft is not sufficiently elementary for the officers for whose use it is designed, and that it assumes an acquaintance on their part with the law of England, which can scarcely be expected from them. Our draft, however, though arranged on a different principle from theirs, embodies most of its provisions. In general, it has been our object to reproduce the English Law of Evidence with certain modifications most of which have been suggested by the Commissioners, though with some this is not the case. The English Law of Evidence appears to us to be totally destitute of arrangement. This arises partly from the circumstance that its leading terms are continually used in different sense, and


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partly from the circumstance that the Law of Evidence was formed by degrees out of various elements, and in particular out of the English system of pleading and the habitual practice of the Courts of Common Law. For instance, the rule that evidence must be confined to point in issue is founded on the system of pleading. The rule that hearsay is no evidence is part of the practice to the Courts but the two sets of rules run into each other in such an irregular way as to produce between them a result which no one can possibly understand systematically unless he is both acquainted with the principles of a system of pleading which is being rapidly abolished and with the everyday practice of the Common Laws of Courts, which can be acquired and understood only by those who habitually take part in it. This knowledge, moreover, must be qualified by study of textbooks, which are seldom systematically arranged…15 This being the case, we have discarded altogether the phraseology in which the English testwriters usually express themselves and have attempted first to ascertain, and then to arrange in their natural order, the principles which underline the numerous cases and fragmentary rules which they have collected together. The result is as follows: Every judicial proceeding whatever has for its purpose the ascertaining of some right or liability. If the proceeding is criminal, the object is to ascertain the liability to punishment of the person accused; if the proceeding is civil, the object is to ascertain some right of property or of status, or the right of one party, and the liability of the other, to some form of relief. All rights and liabilities are dependent upon and arise out of facts and facts fall into two classes, those, which can, and those, which cannot be perceived by the senses. Of facts which can be perceived by the senses, it is superfluous to give examples. Of facts which cannot be perceived by the senses, intentions, fraud, good faith and knowledge may be given as examples. But each class of facts has in common one element which entitles them to the name of ‘facts’—they can be directly perceived either with or without the intervention of the senses. A man can testify to the fact that, at a certain time, he had a certain intention, on the same grounds as that on which he can testify that, at a certain time and place, he saw a particular man. He has, in each case, a present recollection of a past direct perception. Moreover, it is equally necessary to ascertain facts of each class in judicial proceedings and they must in most cases be ascertained in precisely the same way. Facts may be related to rights and liabilities in one of two different ways. 1. They may by themselves, or in connection with other facts, constitute such a state of things that the existence of the disputed right or liability would be a legal inference from them. From the fact that A is the eldest son of B, there arises of necessity the inference that A is by the law of England the heir-at-law of B, and that he has such rights as that status involves. From the fact that A caused the death of B under certain circumstances,

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and with a certain intention or knowledge, there arises of necessity the inference that A murdered B, and is liable to the punishment provided by the law for murder. Fact thus related to a proceeding may be called ‘facts in issue’ unless, indeed, their existence is undisputed. 2. Facts, which are not themselves in issue, in the sense above explained may affect the probability of the existence of facts in issue, and these may be called ‘collateral facts’. It appears to us that these two classes comprised all the facts with it can in any event be necessary for Courts of Justice to concern themselves, so that this classification exhausts all facts considered in their relation to the proceeding in which they are to be proved.16 [Emphasis added] If this is how the heirs of Hume and Bentham were defining facts, and how law was bringing ‘facts’ into existence, what was the other associated category called ‘proof ’? The Select Committee went on in this significant note: This introduces the question of proof. It is obvious that, whether an alleged fact is a fact in issue, or a collateral fact, the Court can draw no inference from its existence till it believes it to exist; and it is also obvious that the belief of the Court in the existence of a given fact ought to proceed upon grounds altogether independent of the relation of the fact to object and nature of the proceedings in which its existence is to be determined. The question is whether A wrote a letter. The letter may have contained the terms of a contract. It may have been a libel. It may have constituted the motive for the commission of a crime by B. It may supply proof of an alibi in favour of A. It may be an admission or a confession of a crime; but whatever may be the relation of the fact to the proceeding, the Court cannot act upon it unless it believes that A did write the letter, and that belief must obviously be produced, in each of the cases mentioned by the same or similar facts. If for instance, the Court required the production of the original when the writing of the letter is a crime, there can be no reason why it should be satisfied with a copy when the writing of the letter is a motive for a crime. In short, the way in which a fact should be proved depends on the nature of the fact, and not on the relation of the fact to the proceedings.17 And then it went on with remorseless logic that a correct idea of proof would tell us what evidence was: The instrument by which the court is convinced of a fact is evidence. It is often classified as being either direct or circumstantial. We have not adopted this classification. If the distinction is that direct evidence establishes a fact in issue, whereas circumstantial evidence establishes a collateral fact, evidence is classified, not with reference to its essential


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qualities but with reference to the use to which it is put; as if paper were to be defined not only by reference to its component elements but as being used for writing or for printing. We have shown that the mode in which a fact must be proved depends on its nature and not on the use to be made of it. Evidence, therefore, should be defined, not with reference to the nature of the fact, which it is to prove but with reference to its own nature. Sometimes the distinction is stated thus: ‘Direct evidence’ is a statement of what a man has actually seen or heard. Circumstantial evidence is something from which facts in issue are to be inferred. The word ‘evidence’ in the two phrases (direct ‘evidence’ and circumstantial ‘evidence’, opposed to each other) has two different meanings. In the first, it means testimony; in the second, it means a fact, which is to serve as the foundation for an inference. It would, indeed, be quite correct if this view is taken to say ‘circumstantial evidence must be proved by direct evidence’. This would be a most clumsy mode of expression, but it shows the ambiguity of the word ‘evidence’ which means either: 1. Word spoken or things produced in order to convince the Court of the existence of acts; or 2. Facts of which the court is so convinced and which suggest some inference as to other facts. We use the word ‘evidence’ in the first of these senses only, and so used it may be reduced to three heads: i) oral evidence; ii) documentary evidence and iii) material evidence. Finally, the evidence by which facts are to be proved must be brought to the notice of the court and submitted to its judgement and the court must form its judgement respecting them. These general considerations appear to us to supply the groundwork for a systematic and complete distribution of the subject as follows: I. II. III. IV.

Preliminary The relevancy of facts to the issue. The proof of facts according to their nature by oral, documentary or material evidence. The production of evidence; and procedure.18 [Emphasis added]

One can see the strength and dilemma of the entire discourse. On the one hand, true to the theory of adjective law, the Select Committee tries to erect a truly independent law of procedure. That is its strength. It wants to define categories or concepts in their own terms. But the Committee is only too aware of the relational nature of these categories: fact, proof, evidence. Relations between these three categories, relations between the process and the substance, relations between all these with law and power—clearly the latter half of the 19th century was laying down the most objective process of domination possible through establishing objective standards of defining the relation between law, facts and decision. This was how judicial power took shape: it was rational; hence, it reinforced power and domination.

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We have already noted that the aim of the colonial power, to remove the subjectivities of native society that were overwhelming the criminal world, was contingent upon three pillars: (a) close observation of the body of the criminal and his soul; (b) arousing a sense of self-interest in the public in submitting to the rule of law, and, therefore, making the judicial process a public process; (c) developing a distinct power of punishment, known as judicial power, based on criminal and civil procedures. All these strategies contributed to the legal science of evidence consisting of the knowledge of three categories—facts, proof and relevance. To conclude, this knowledge was procedural knowledge, by which we mean that it was always a question of right procedure to establish facts, providing proof and arguing for the relevance. This was judicial power at the behest of a State and its governmental task of maintaining the daily order of the society; and at the heart of this particular form of power lay the essence of law, legality and objectivity.

V But being objective, we have also noted, though in passing, requires suitable technologies. We have mentioned photography and the development of print culture as two instances. We can see in this context something more relating to appropriate technology. In fact, the Evidence Act stands at the intersection of developments such as those of criminal procedure, various anthropometric measurement techniques which would soon include fingerprinting, the evolution of the colonial systems of classification, the machineries of law and order, the hardening rules of criminality, the advent of photography, and print techniques. These gave form to what Vinay Lal calls the ‘epistemological imperatives’ of a State, in this case the colonial State.19 After the conquest of territories, faced with the necessity of settling them and endowing them with proper administration— which meant the introduction of a regime of law and order—the task was to know the Indians well. But since every Indian could not be known, and that was scarcely necessary given the fact that the ‘Indians lived in communities only’, the task was actually to know each and every collectivity as much as possible. That was how anthropometry and anthropology came into an alliance to produce knowledge of the group, and by virtue of that, of the criminal group, and by a short route, of the criminal mind. The emergence of fingerprinting in India is marked by this context. Lal mentions in this context the crucial role of Edward Henry, who was in 1891 appointed Inspector General of Police for the Lower Provinces, Bengal. Henry first experimented with the anthropometric system but was not satisfied with the accuracy of the measurements. In a report submitted to the Government of Bengal in 1896, Henry detailed the experiments he had conducted with fingerprints, which he observed were not only inexpensive to obtain but also a surer means of detecting and confirming the identity of any given person. At Henry’s behest, the Government of India appointed a committee of inquiry to report on the relative merits of the anthropometric and fingerprinting systems.


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The committee came to the conclusion that the method of identification of habitual criminals by means of fingerprints…may be safely adopted as being superior to the anthropometric method, and by a resolution of the Government of India on 12 June 1897, the system of fingerprinting was adopted throughout India. In 1895, a provincial fingerprint bureau was established in Madras. In 1898, the first national fingerprint bureau in the world was set up at the police headquarters in Calcutta. Act V of 1899 amended the Indian Evidence Act of 1872 to admit fingerprint evidence, and, as Henry was to remark in 1899, in a lecture delivered before the British Association for the Advancement of Science, before the turn of the century fingerprinting had been adopted by virtually all other departments of the Government of India. By the 1920s, Azizul Haq and Hem Chandra Bose of the Bengal Police, who had been once attached to Henry, had perfected the system of fingerprinting classification. Along with the invention of fingerprinting came the development of photography, which assisted in the development of a system of surveillance through what the colonial rule took to be a more accurate representation of the people. The massive photographic exercise in typology, The People of India, initiated at the behest of Governor-General Canning, was transformed by the Rebellion of 1857–58 into an official project of the State and placed under the control of the Political and Secret Department. As I show in my work on terror, law and the colonial rule, these photographs of Indians brought to light not ‘individuals’ but types,20 which was ironic given that the Evidence Act, as a piece of liberal jurisprudence, was based on the individuation of guilt and crime and, therefore, on the principle of individual responsibility, crime and punishment. Evidence was of an individual committing crime, and in this the fingerprint identification and the Criminal Justice System (CJS) were going to be of primary assistance. Simon Cole has noted many similarities between the debate over the impact of the newest identification technology, DNA typing, and the impact of the earlier biometric systems, mainly the fingerprint identification system on the CJS. Exactly as now, then, too, questions were raised: How accurate, discriminating and reliable was the fingerprinting system, and how would we measure these attributes? How would the police monitor the application of the new technology of identification to minimise errors? How inclusive should the fingerprinting databases be? What kind of threat did they pose to individual privacy and to civil liberties? What was the relationship between the criminal justice application of fingerprinting and other applications in areas like healthcare, immigration control and scientific research? Did these databases raise the spectre of eugenics?21

VI Death is the final punishment that proper evidence can bring about. Therefore, the exceptions made by TADA to the Evidence Act, which resulted in death sentences, are worth noting.

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These exceptions are also instructive for they do not claim that evidence is not necessary: they only make changes in the procedure ‘in the light of grave offences’. They are, of course, silent on the question of whether these exceptions change at all the category called ‘evidence’. If legislating extraordinary laws such as TADA is the technique today to grapple with the objectivity of evidence, in the colonial time it was the technique of building a conspiracy case whereby members of a ‘conspiracy’ could be killed judicially on the basis of indirect and circumstantial evidence. Each murder of a colonial official or assault or train robbery was the outcome of a conspiracy against the State and the Crown; therefore, the conspirators had to be punished with the extreme sentence. Thus, many were sentenced to death; in this way, in each of these cases, up to today, the relation between death as the final punishment and evidence has been redefined. This technique appeared on the basis of two developments: (a) by the entire development of the treason law in England in the preceding three centuries;22 (b) by making association of the individuals in the colony suspect in the eyes of government for any reason except the most banal. Thus, the Criminal Code was amended again and again to expand the scope of ‘unlawful association’ to facilitate charges on its grounds, in the face of which the elaborate procedure of the Evidence Act seemed, at times, meaningless. Thus, Section 16 under Part II of the Indian Criminal Law Amendment Act of 1908 defined ‘unlawful association’ in the broadest possible sense, and Section 17 increased the penalties. The law was amended again in 1932, making circulation or publication of literature proscribed by the government unlawful, and brought any possible case of intimidation under punishable offence. In 1938, it was again amended, this time aiming to punish acts that seemed to encourage ‘mutiny’. Section 2 of the Act declared punishable those acts with ‘intent to affect adversely the recruitment of persons to serve in the Military, Naval, or Air Forces…’.23 We have to see, therefore, the functioning of the Evidence Act in a relational way, the other elements being the Penal Code, the Criminal Procedure Code and the Police Act. To appreciate the extent to which the relation between death as the final punishment and evidence is redefined by these conspiracy cases, one can study the Rajiv Gandhi murder case.24 In the said case, in its appellate stage in the Supreme Court, Justice S. Shah Mohammed Quadri had to observe that the conviction of the accused under TADA was unsustainable because: (a) the provisions of sub-sections (2), (3) and (4) of Section 3 of the TADA Act would be attracted only when a person accused of the offences under the said provisions had committed ‘a terrorist act’ within the meaning of Section 3(1) of the TADA Act;25 and (b) the accused must be members of a conspiracy, which means that they must be proved to have conspired—the ‘shroud of secrecy’ argument could not be evidence. The need on behalf of the State to reinvent and then manage a legal tradition whereby it can continuously link its evidence theory with its need to punish the accused and the guilty is clear. For that, we shall have to of, course, return to the colonial roots, when in punishing the nationalists accused of committing terrorist crimes, the evidence theory had to be readjusted repeatedly.


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But lest we think that this was mainly a colonial feature, we should note that this tradition continues to this day. In 2002, the government set up the Malimath Committee headed by a former High Court judge. It had a broad mandate ‘to examine the fundamental principles of criminal jurisprudence, including the constitutional provisions relating to criminal jurisprudence, and see if any modifications and amendments are required’ and suggest amendments. The Justice Malimath Committee had posed three major questions: (1) Should we dispense with the basic premise of criminal law, namely, proof of guilt beyond reasonable doubt? According to the Committee such a presumption is not found in the Evidence Act. (2) Should we not, as a consequence, do away the right of the accused to silence? (3) Should we not as a consequence abolish the right of the accused against self-incrimination? An affirmative answer would have allowed the government to radically revise all criminal laws, and the Constitution itself. It would have gone against the commonly held basis of criminal justice, namely, that the onus of proof was upon the prosecution, not the accused; otherwise, the presumption of innocence would be violated and the accused would be treated as guilty before trial. It was also important to protect the accused against forced confession.26 Article 359 says that during a state of Emergency, the right to move a court to enforce fundamental rights may be temporarily suspended, but Articles 20 and 21 cannot be suspended. Article 21 concerns the right to life, and Article 20 says, ‘No person shall be compelled to be a witness against himself.’ The right of an accused to silence, not to incriminate himself/herself, is total. The right of silence: an intriguing yet compelling part of a theory of evidence. We are heirs of the legacy of right to speech, and have heard of the soul’s obligation to practise ‘fearless speech’. But, what are we to say about silence? Like speech, silence, too, we can see, is connected with power of a situation, or power in a situation. First, there is this idea that the presumption of innocence of the accused, his silence and the privilege against self-incrimination are responsible for the increase in crime; and since it is assumed that the presumption of innocence is firmly embedded in the Evidence Act, there is almost now a social consensus in favour of a change. The Act, of course, says that if you accuse someone of a crime, you must establish the same beyond all reasonable doubt. The provisions of ‘burden of proof ’ lay down in detail the course of ‘onus of proof ’ available with respect to events and facts during the course of a trial. Second, there is the idea that there are ‘obstacles’ to the discovery of the truth. Indeed, obstacles are evidence that there is truth, and, therefore, in the administration of jurisprudence, these obstacles have to be removed.

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Finally, interpretation is the great tool by which the right to silence has been considerably broken down. Thus, a confession outside the court either to a police officer under POTA or to the magistrate is admissible. The accused is expected to explain every adverse circumstance to the court at the conclusion of evidence, with the court having the power and the jurisdiction to draw adverse inferences while formally ‘appreciating’ the silence of the accused on the evidence against him. Breaking the silence of the accused has, therefore, been accompanied by a strategy of silencing the defence. There is the truth, and if the discovery of the truth has obstacles that have to be removed, there is the other side, namely, that truth must have its victims. Therefore, the accused, although given the formal right of silence before the executive, cannot be allowed to remain silent before the judiciary: that silence must be broken. This is a system which created legends out of lawyers. The crime and the criminal, the litigant and his cause, recede to the background and the lawyer occupies the centre-stage.27 Truth, fearless speech, inquiry, and silence become subordinate to the protocol of justice, which is the other name of the power of procedure—power that is inherent in a procedure. That the Evidence Act organises the relation between truth, evidence and punishment in a particular way, and therefore each time the Act changes due to amendment or case laws, the relation is also reorganised, is borne out by some of the recent Law Commission recommendations. The Commission stated in its report (185th) to the Law Ministry in March 2003: …Law of Evidence is one of the most important laws administered by our civil and criminal courts. Since 1872, when the present Act was enacted, there has been a sea change in human rights jurisprudence all over the world. Seventy years later, basic principles governing human rights were enunciated in the Universal Declaration of Human Rights, 1948. This was followed by the International Covenant on Civil and Political Rights, 1966. The said Convention has been ratified by India in 1976. Our Constitution came into effect from January 26, 1950. Art. 20(3) of our Constitution declares the fundamental right against self-incrimination. Art. 21 guarantees liberty and a right to procedure established by law which after Maneka Gandhi, requires the procedure to be just, fair and equitable. Principles of evidence, which are applicable to criminal law, have to necessarily satisfy the basic requirements both of Art. 20(3) and Art 21. Nor can the procedure be discriminatory or arbitrary; otherwise it may offend Art. 14. Special protection is necessary for women who are victims of crime. Transparency in governmental functioning is an essential feature of democracy. Press freedom has to be protected and its boundaries delineated…. The proposed amendments are intended to conform to these new standards. We may very briefly highlight a few of the important recommendations made in this Report. Admissibility or otherwise of confessions is covered by sections 24 to 29. We have proposed amendment to sec. 27 to conform to the several judgments of the Courts. Sarkar in his commentary on the Evidence Act, 1872 (15th ed., 1999, p. 534) has stated that while


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sec. 27 requires to be amended, only a person of the eminence of Sir James Stephen can make an attempt. Such was the magnitude of the task under sec. 27. Sec. 27 is now proposed to be an exception to sections 24 to 26. By the introduction of the word ‘or’ it applies to facts discovered from statements by those in custody and not in custody. The words ‘distinctively’ and ‘so much of such information’ are proposed to be deleted. Under sec. 27, it is further proposed that facts discovered from statements can be admitted in evidence only if the statements have not been made under threats, cruelty, violence or torture. Facts discovered by inducement or promise will still be relevant. We had to differ totally from the recommendation in the 69th Report to incorporation of sec. 26A to make all confessions to senior police officers admissible irrespective of the nature of the offences, a recommendation, which according to us, goes contrary to the views of the Supreme Court and in particular, the views expressed in Kehar Singh’s case. What can be sustained under Arts 14 or 21 as an exception in the case of terrorist’s confessions or of those involved in organized crime, cannot be made a general rule and applied to the admission in evidence of every confession made to a senior police officer, in the context of every other offence. This would, as per the statement of the law by the Supreme Court, violate Arts 14 and 21, and all considerations of proportionality…. Regarding ‘affairs of State’ and production of unpublished government records and ‘confidential communications’ to a public officer, amendments are proposed to sections 123, 124 and 162, taking into account changes in the law as declared in S.P. Gupta. We have accepted the recommendation in the 69th Report and the 88th reports, which are identical in this behalf. We have, however, proposed one change. Instead of an appeal, as proposed in the 88th Report from orders of subordinate Courts on questions as to affairs of State decided under sec. 123, we have proposed that there should be a ‘reference’ to the High Court on the said question by the subordinate Court. With reference to proof of paternity, in sec. 112, apart from the sole exception of ‘non-access’, other exceptions by way of blood-group tests, DNA have been proposed but subject to very stringent conditions. Further, the benefit of the presumption as to paternity in case of those born during the continuance of a marriage or within two hundred eighty days of dissolution, is now extended not only to children of voidable marriages which are avoided but to children of void marriages where a declaration of nullity is obtained, provided such children are, under their respective personal laws, treated as legitimate.… Presumption of genuineness of ancient documents is proposed to apply, in sec. 90, to documents 20 years old rather than 30 years old as done in other countries. It is also proposed to introduce subsection (2) to sec. 90 to include registered documents the originals of which are twenty years old, as done in UP by 1954 Amendment. Sec. 90 raises presumption as to execution, handwriting and attestation. Sec. 90A is proposed, as done in UP in 1954, in respect of registered documents, the originals of which are less than twenty years old, to raise only a presumption of execution.

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With reference to persons whose whereabouts are not known, presumption under sec. 108 is modified. As to presumption of death by a particular date, we propose to clarify, while not accepting the view of the Privy Council that, at the end of 7 years, the death must be presumed, unless the person who wants to prove the person was alive after 7 years, is able to prove that fact. Of course, if a party contends that the person died by any particular date within 7 years, he has to prove the same. The proposed amendment helps persons to take decisions in respect of remarriage or succession….28 Kehar Singh, as we know, was hanged in the Indira Gandhi murder case, and the punishment was an ironic commentary on the principle of proportionality. Yet, more than any other case, the trial of Kehar Singh showed how the truth constituted its own relation with evidence and punishment. Here, not only the ‘particular’ evidence (of the conspiracy) made Kehar Singh a criminal—an object of punishment—it also made the matter of studying the particular mode of the ‘objectivation’ of the subject an essential task, meaning thereby that we study the methods and techniques used in a particular institutional context to categorise an individual or a group to shape, direct and modify their way of conducting themselves, to impose ends on their inaction or fit it into overall strategies: ‘This is what government is’; and it was in this way that the Evidence Act aimed to control that part of the population that was suspected of committing crimes. The Evidence Act was one of the earliest instances in the country of the phenomenon of what Michel Foucault was to later call famously ‘governmentality’. While one needed a definition in legal procedure, one must understand that the definition also required concrete situation-wise understanding, coupled with a certain transcendental reasoning. Thus, the authors of the famous law book, Law of Evidence,29 Sir John Woodroffe and Syed Amir Ali, themselves two of the most famous jurists in the second half of 19th-century India, followed the even more famous jurist, Sir James Stephen, the author of the Evidence Act, in classifying facts: (a) (b) (c) (d)

Any part of the fact alleged or any fact implied by the fact alleged. Any cause of the fact. Any effect of the fact. Any fact having a common cause with the fact in issue.30

And if this was a fact, then what was a relevant fact? What are its rules? Rule 1: No fact is relevant which does not make the existence of a fact in issue more likely or unlikely.


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Rule 2: Facts which are a cause of a fact in issue, or are an effect, or which show the absence of what might be expected as an effect of the fact in issue, or which are effects of a cause of a fact in issue. Rule 3: Facts which affirm or deny the relevancy of facts alleged to be relevant under Rule 1 are relevant. Rule 4: Facts relevant to relevant facts are relevant. We could have chosen, if scope permitted, to examine these four rules through illustrations, and could have seen how interconnections that signified the entire evidence theory were reducible to certain definitions which always fell short of real life events—a situation that made a strong theory of evidence a compulsory element in the governance of justice. We must not think, however, that the colonial rule looked to evidence and the Act as Adam Smith’s invisible hand guiding the crime control world from behind, and steering society to rationality. Evidence production and proof took place in a real world of bloody conflicts and property wars; it was a result of the social struggles in England, where law, evidence and the widening of the notion and the institution of jury were the primary means by which the middle class wanted to capture the juridical world.31 Thus, truth-search jumped from issue to issue with thinking each time that the final measure had been found to test truth, only to recoil the next moment in order to ask, ‘Is the fact and the inquiry relevant?’ and ask further, ‘What is relevance?’ The colonial society was in a rollercoaster ride of reason, and the result could be only what a ‘split of reason’ would ensure, namely, a mix-up of intention and reason, or desire and reason—a result which a passionate society could only laugh at. Finally, it was passion that supplied the five key categories of deliberation on relevance—‘knowledge, motive, intention, preparation and attempt’. These categories were explained as: Knowledge means a state of mind, entertained by a person, with regard to existing facts, which he has himself observed or the existence of which has been communicated to him by another person…. Knowledge and actual knowledge have sometimes been held synonymous…. Knowledge is nothing more than man’s firm belief and is distinguished from belief, in that the latter includes things which do not make a very deep impression on the memory…. The difference is merely in degree…. Motive is the longing for the longing for the satisfaction of desire, which includes the mind to wish and then to intend doing something, which would bring about the realisation aimed at. Primal motive is always the outcome of an impulse, which the mind receives from outside, and which owing to the peculiar state in which it happens to be, is susceptible of being affected thereby…. Now the wish for the end is, in turn, succeeded by another phase in the development of the mind. The wish for the end produces certain deliberation of choice of means to achieve the end

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wished for…. There is within the mind, a balance of judgement, which carefully measures the practicability and cautiously weighs the probability of its being carried out…. After the choice of means has been fixed upon, there follows a desire to do the act. The desire to do the act must not be confused with the wish for the end aimed at. The one leads the deliberation, while the other follows in its trail…. Next comes a sterner successor—a determination or the will to do the act. Determination must be distinguished from deliberation…. We have given above a sketch of the operation of the mind and have shown the connection between motive and intention…. Intention and knowledge are not necessarily identical.32 These instances of pseudoscientific knowledge, we have to note, had three characteristics: (1) It developed through a host of cases in the colonial time such as Kalijiban Bhattacharya vs Emperor,33 Emperor vs Zamin34 and jurists such as Stephen’s own writings. (2) It replaced an autopsy of heart with autopsy of the mind. (3) It erected a line or chain of logically explainable successive steps of a ‘criminal’ doing the act: the mind controls the passions, the law detects the mind and justice lays down the way in which an errant mind is to be punished. For all these, the criminal had to be monitored and inquired into closely. His actions, intensely stark and physical, had to be known; only thus would his mind be knowable. Thus, evidence had to be there as to where he had gone, how he had slept, how he ran, how he had attacked, what the physical distance between him and the victim was, whom he had talked with prior to and after the act. The evidence was the real thing, it was not there; it had to be produced.

SUMMING UP In a very perverse way, the Evidence Act contained a dual reality. On the one hand, the Act and its discursive surroundings (including the earlier draft bills, Law Commission suggestions, Stephen’s notes, later commentaries, etc.) were giving shape to a reality (about crime, criminology, criminality, trial and punishment) known as the political reality of rule of law. On the other, this reality of rule of law claimed that it was confronted with and was tackling the reality of the passions and crimes in the society. This was, therefore, a classic instance of a correspondence of the history of a discourse to an ‘actual past’, and illustrative of how a narrative rhetorically functioned within a field of power relations. What did this combination succeed in producing finally? An ‘efficient and rational’ way of governing society by controlling the extremes; the constitution of a delinquent milieu; the


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strengthening of the legal basis of rule and, by contrast, the reinforcement of the opposition between restraint and passion, with the society retaining in its secret depths the wellspring of passion as the source of inspiration against law, and the defiance of rules of evidence. We can also ask, given the long story of rule of law and due process and the significance of these colonial experiments in the metropolitan heartlands: Why is it that while the Evidence Act, by and large, remains unchanged, and is accepted as one of the stable stones in the entire edifice of due process? The gift of rule of law (of which the Act is a part)—the new agency in the perennial story of crime and punishment—could not bring about any epoch-making change in social attitudes to criminality or, as the utilitarian experimenters wanted to have it, succeed in banishing crime, criminals and passions altogether from society. The problem, of course, begins with the day-to-day expediency which dictates the rules of governance to the extent that great crimes may pass unpunished or waves of murders produce no ‘evidence’ before the courts, and therefore remain unaccounted for through ages; where disorders reappear with food riots, communal riots, excise riots, militia orgies, gang robberies, endemic and often violent smuggling. And that is how the rule of law carries on—incrementally, without gloss, without mission, without ethic, the shine on the rule long over.

NOTES & REFERENCES 1. Illustration for Section 101, Chapter 6, Part 3, titled ‘Production and Effect of Evidence’ of the Indian Evidence Act 1872. 2. Samaddar, R. 2002. ‘Colonial Constitutionalism’, in Identity, Culture and Politics, July 2002, 3(1). 3. Jarashandha. Louhakapat. Kolkata: Mitra Ghosh, 1375 B.S. First edition. 4. For a different account of exhibiting bodily features of the criminals, see Morgan, Gwenda and Peter Rushton. 2005. ‘Visible Bodies—Power, Subordination, and Identity in the Eighteenth Century Atlantic World’, in Journal of Social History, Fall, 39(1). 5. Yang, Anand. 1987. ‘Disciplining Natives’, in South Asia, New Series, December, 10(2): 29–45. Yang has argued on the basis of an analysis of the report of the Committee for Prison Discipline in India, dated 1838, that labour, discipline, severity of imprisonment and policing the prisoners were the key elements in their suggestions which had nothing to do with humanitarian voices for reform and rehabilitation. 6. On the role of confession as evidence, and what it means to confess, see Wolchover, David and Anthony HeatonArmstrong. 1996. Confession Evidence. London: Sweet and Maxwell Criminal Law Library. 7. Even now this is relevant. For instance, Section 76 of the Police and Criminal Evidence Act 1984 (PACE) deals with challenges as to the admissibility of confession evidence in criminal proceedings so as to prevent the confession being adduced against its maker by the prosecution as evidence to show guilt. Section 76(2) PACE directs the court to exclude confession evidence obtained: oppression; or and in circumstances which were likely to make the confession unreliable. But the prosecutors have to remember that, while the confession itself may be excluded, Section 76(4) allows facts discovered as a result of the confession or by the way in which defendants speak, write or express themselves to be adduced where relevant. 8. Cited in Banerjee, Tapas Kumar. 1963. Background to Indian Criminal Law, p. 265. Calcutta: R. Cambray & Co.

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9. Translated in English by Henry Blochmann (Vol. 1, 1873) and H.S. Jarrett (Vols 2–3, 1891 and 1894)—Calcutta Bibliotheca Indica series. The book is a unique compilation comprising the system of administration and control over all departments of government of the Mughal empire. Later Mughal administrators, both in the administration and revenue side used the book as a guide. The statistical details were utilised by the colonial government as well, since the latter had adopted the Mughal revenue administration system, with necessary revisions from time to time. 10. Cited in Banerjee, Tapas Kumar, 1963. Background to Indian Criminal Law, pp. 256–57. Calcutta: R. Cambray and Company. 11. The author is here summarising one aspect of David Hume’s entire work on moral philosophy, for instance, Hume, David. 1751. An Enquiry concerning the Principles of Morals. Reprinted in 1966, New York: Free Press. 12. Holmes, Stephen. 1995. Passions and Constraints—On the Theory of Liberal Democracy. Chicago: University of Chicago Press, pp. 57–58. Holmes lists these on a consideration of words in circulation in the 17th and 18th centuries—words denoting the antonyms of self-interest as defined by David Hume and Adam Smith. 13. On the classification of Bentham’s adjective law writings we mainly rely on ‘An Introductory View of the Rationale of Evidence for the Use of Non-Lawyers as well as Lawyers’ (1802–03), in Mill, James (ed.). 1809–11. Works, vi, pp. 1–188. Very Important is his ‘Scotch Reform’ and ‘Principles of Judicial Procedure’, in Doane, R. (ed.). 1820–27. Works, ii, pp. 1–188. On sections relating specifically to evidence in ‘Scotch Reform’, see ‘Letter Four’, pp. 61–100. These to be found in The Complete Works and Correspondence, Vols. 6–7. New York: Oxford University Press. 14. Cited in Woodroffe, John and Syed Amir Ali. 1898. Law of Evidence, Volume 1. 17th Edition, Rao, S.V. 2001, p. 24. New Delhi: Butterworths. 15. Draft Report of Select Committee, Gazette of India, 1 July 1871, Pp. V, p. 278, cf. Woodroffe and Ali 1898, op. cit., p. 27. 16. Ibid., pp. 28–29. 17. Ibid., p. 29. 18. Ibid., pp. 29–30. 19. Vinay Lal, ‘Criminality and Colonial Anthropology’, originally published as introduction to Naidu, Rai Bahadur M. Pauparao. 1995. The History of Railway Thieves, with Illustrations and Hints on Detection. Gurgaon, Haryana: Vintage Press, pp. i–xxvii. The reprint edition of the Fourth Edition. 1915. Madras: Higgin Bothams Limited. 20. Samaddar, Ranabir. 2004. ‘Terror, Law, and the Colonial State’. Published text of a public lecture at Omeo Kr. Das Institute of Social Change, Guwahati. These types were recorded in details with photographs in the Intelligence Bureau records. 21. Cole, Simon A. 1992. ‘Fingerprint Identification and the Criminal Justice System—Historical Lessons for the DNA Debate’, in Paul R. Billings (ed.), DNA on Trial: Genetic Identification and Criminal Justice. Cold Spring: Harbor Laboratory Press. See also by Cole for a full history of fingerprint identification, Suspect Identities: A History of Fingerprinting and Criminal Identification, New Jersey: Harvard University Press, 2001. 22. Steffen, Lisa. 2001. Defining a British State—Treason and National Identity, 1608–1820. New York: Palgrave, particularly Chapters 3–4, pp. 69–139. 23. Sarkar, P.C. 1951. Handbook of Criminal Laws in India and Pakistan, Vol. II, entitled ‘Minor Acts’, pp. 119–30. Calcutta: S.C. Sarkar and Sons. 24. In The Supreme Court of India Criminal Appellate Jurisdiction Death Reference No.1 of 1998 (Arising out of D.No. 1151/1998) State of Tamil Nadu through Superintendent of Police, CBI/SIT… Petitioner/Appellant vs Nalini and 25 others… Respondents with Criminal Appeal No. 321 of 1998 T. Suthenthiraraja@Santhan & Ors… Appellants vs State by D.S.P., CBI, SIT, Chennai… Respondent with Criminal Appeal No. 322 of 1998 P. Ravichandran & Ors… Appellants vs State by D.S.P., CBI, SIT, Chennai… Respondent with Criminal Appeal No. 323 of 1998 Robert Payas & Ors… Appellants vs State by D.S.P., CBI, SIT, Chennai… Respondent with Criminal Appeal No. 324 of 1998 S. Shanmugadivelu & Ors… Appellants vs State by D.S.P., CBI, SIT, Chennai… Respondent with Criminal Appeal No. 325 of 1998 S. Nalini & Ors… Appellants vs State by D.S.P., CBI, SIT, Chennai… Respondent.


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25. Section 3(1): Punishment for terrorist acts—Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony among different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire-arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act. 26. These guarantees, one legal commentator reminded us, were required in the context of international human rights laws such as the International Covenant on Civil and Political Rights to which India is a signatory or the Convention against Torture. Praful Bidwai, ‘Fighting Terror, Upholding Law—The Centrality of Human Rights’. Available online at http://www.sdnbd.org/sdi/news/general-news/December-2002/21.12.2002/Feature.htm#Fighting 27. Kannabiran, K.G. 2003. ‘Malimuth Committee—Safeguard the Rights of the Accused’, PUCL Bulletin, January. Available online at http://www.pucl.org/Topics/Law/2003/malimath.htm 28. Letter from Justice M. Jagannadha Rao to Arun Jaitley, Union Minister for Law and Justice, Government of India—Law Commission of India, 185th Report on the Review of the Indian Evidence Act, 1872, March 2003, DO No. 6(3) (70)/2001-LC (LS) 13 March 2003. 29. Woodroffe, John and Syed Amir Ali. 1898. Law of Evidence, Vol. 1. 17th edition, edited by S.V. Joga Rao. 2001. New Delhi: Butterworths. 30. Ibid., p. 117. 31. Hay, Douglas. 1975. ‘Property, Authority and the Criminal Law’, in D. Hay, P. Linebaugh and E.P. Thompson (eds), Albion’s Fatal Tree, pp. 38–63. London: Allen Lane. 32. Woodroffe and Ali 1898, 1: 761–63. 33. AIR 1936 Cal 316 ILR 63 Cal 1053. 34. AIR 1932 Oudh 28, 136 IC 243.

16 Conspiracies of Association: Associational Offences, Associational Freedoms and the Rule of Law K.G. Kannabiran UNDERSTANDING CONSPIRACY Conspiracy, as the definition itself suggests, directly trenches upon the associational freedoms of speech, association and assembly, and the crime of conspiracy has been extensively used in political trials. As an offence per se, it dispenses with the requirement of an overt act. The issue in a conspiracy trial is not manifest criminality, …but the classic concern in the theory of subjective criminality, namely the demonstration ‘that the conspiracy is at work…(and not) a project still resting solely in the minds of the conspirators…. In line with the pattern of subjective criminality, acts ‘innocent’ …in themselves, such as mailing a letter, or making a telephone call, can constitute the required overt act for a conspiracy.1 Conspiracy as a crime per se is an inchoate offence, and the issue of manifest criminality may not figure as an imperative requirement for decision in a conspiracy trial. It is precisely this inchoate character of the offence which invites criticism in political trials, where it is extensively employed. For instance, conspiracy as an offence was introduced into the Indian Penal Code (IPC) in 1913 to deal with the rise of the Indian Independence struggle, and this provision was constantly in the service of the British government. From the time it was introduced, it was used as an effective weapon to discredit political dissent. The Meerut Conspiracy Case, the trial for which began in

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late January 1930 and concluded three years later, illustrates the mischief this provision can do to the working of democracy.2 The Viceroy explicitly wrote to the Secretary of State on 19 January 1929 that: …a case against the Communists would expose by means of a judicial pronouncement, which would not be questioned, the real aims and the methods of the Communists. Thereafter it would probably enable us to proclaim certain communist associations, under the Criminal Law Amendment as unlawful associations, on the authority of the findings of the Court. Both on grounds of general policy and on practical considerations we should in the first place launch…a comprehensive case against the leading Indian Communists.3 Although the trial court sentenced the accused to various terms ranging from three years to life, the High Court, finding that no overt act of illegality had been committed pursuant to the conspiracy, reduced the sentences to periods ranging from three years to seven months, releasing several accused. George Fletcher points out the injustice that flows out of the inchoateness of the offence of conspiracy, where absence of evidence of the overt act of conspiracy does not protect the accused from conviction: The relentless criticism of the doctrine of conspiracy invites some retrenchment in the scope of liability. The primary libertarian concern is that prosecution of political conspiracies trenches too far on protected freedoms of thought and speech. A sensible restrictive measure would be strengthening the overt act requirement. This would insure that the prosecution stays its hand until a politically dissident group manifests palpable danger to the community.4 Section 10 of the Evidence Act has no other use than proof of conspiracy. The section was drafted with the intention of being effectively used in periods of political turbulence. The section is couched in very vague and wide terms, making statements and acts admissible which would otherwise not be admissible in a trial. Section 10 reads: When there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said or done by any one of such person in reference to their common intention, after such intention was first entertained by any one of them, is a relevant fact as against each of those persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was party to it.

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The first decision which clearly delineated the scope and ambit of Section 10 was Mirza Akbar vs King Emperor: The words relied upon in Section 10 of the Evidence Act are ‘in reference to their common intention’. These words may have been chosen as having the same significance as the word ‘related’ used by Williams and Coleridge JJ. Where the evidence is admissible, it is in their Lordship’s judgment, on the principle that the thing done, written or spoken, was something in carrying out the conspiracy, and was receivable as a step in the proof of the conspiracy. The words written or spoken may be a declaration accompanying the act, being an act in the course of the conspiracy; or the words written or spoken are may in themselves be acts done in the course of the conspiracy. This being the principle, their Lordships think the words of S.10 must be construed in accordance with it, and are not capable of being widely construed so as to include a statement made by one conspirator, in the absence of the other, with respect to past acts done in the actual course of carrying out the conspiracy. The common intention is in the past. In their Lordships’ Judgment, the words ‘common intention’ signify a common intention existing at the time when the thing was said, done or written by the one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of common intention, once reasonable ground has been shown to believe in its existence.5 In assessing the proof, or otherwise, of the agreement, which is the sine qua non of a conspiracy charge, Justice Jagannath Shetty, while later delivering the opinion of the court in Kehar Singh and Others vs State (Delhi Administration), 1988 SCC (Cri) 711, the other two judges concurring with whatever he said, pointed out: that the concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard.6 In setting out their legal understanding of the provision, Justice Shetty and the other two judges overlooked the fact that the subjective element, namely, the ‘reasonable ground to believe’, superimposed over legalistic understanding, allows one’s political and social prejudices to define the understanding of the agreement and other inferences of the facts. With reference to proof and admissibility of evidence under Section 10, Gill vs The King is instructive.7 While the case presents some curious features, there appeared to be no other cases in the courts of India at that time where a similar set of circumstances had been reviewed. According to the learned judges, the reasonable belief referred to in Section 10 is not a static concept. Evidence admitted at one stage as inspiring reasonable belief may be dislodged by subsequent evidence.


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There was, in their view, no finality attached to evidence under Section 10 of the Indian Evidence Act. The court was at pains to point out that, ‘[i]t is not the true view of the conspiracy charge of this kind that evidence once admitted remains admissible’ even if dislodged by subsequent evidence. This aspect of conspiracy evidence has not been adequately appreciated or understood in the jurisprudence on conspiracy in India. H.M. Seervai was the only scholar who openly refuted the correctness of the Supreme Court’s finding on the Kehar Singh case. He questioned the correctness of the use of conspiracy theory in this case.8 Another interesting debate was about the liberal interpretation given to Section 10 by Subba Rao J. in Sardar Sardul Singh Caveeshar vs State of Maharashtra. Justice Subba Rao opined that the phrase ‘in reference to their common intention’ is very comprehensive, and that it is designed to be comprehensive in order to give a wider scope than the words ‘in furtherance of ’ used in English law so that anything said, done or written by a co-conspirator, after the intention was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. His attempt was to extend the field of admissibility to events before and after the termination of conspiracy. This interpretation is, and would have been considered as, violative of Article 21. Such an extension would have been arbitrary. Justice Shetty preferred to follow the interpretation given in Mirza Akbar cited earlier. This chapter will attempt to uncover the ways in which Constitutional values are perverted in the interests of the status quo. It will do this through a series of cases, each of which examines the relationship between associational freedoms and associational offences, especially the tensions thereof, in the light of the larger understanding of conspiracy in criminal law.

The Murder of Dalits in Melavalavu In the Melavalavu case9 where six Dalits were slaughtered, the killers were reluctantly prosecuted, tried and convicted by the trial judge. The judgement itself was one that provided the possibility for prospective acquittal at the appellate stage. The judge found no motive for the murders, no conspiracy, not even unlawful assembly. He convicted 18 of the 40 accused, and the State preferred not to file an appeal. The facts will be set out here briefly, followed by an elaboration of the Constitutional and legislative journey to equality—especially political equality—for persons belonging to the Scheduled Castes and Scheduled Tribes that enables their participation in governance at the local self-government level. The Melavalavu Panchayat Board was notified as reserved for Scheduled Castes, and the election was first scheduled for 28 December 1996. People of other communities, especially the Kallar caste,

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did not like this. The election had to be postponed twice, being finally held on 31 December 1996. The reason for the postponement was evidently that nobody from the Scheduled Castes had filed their nomination. Despite obstruction by the Non-Scheduled Caste people of the village, Murugesan (D1) filed his nomination and got elected president of the Melavalavu Panchayat Board. However, he was not able to function freely and without fear. On 30 June 1997, six months after his election, Murugesan, accompanied by the vice-president, Mookan, Selladurai, Sevagamoorthy, Nithianandam, Pandiammal and Kanchivanam, visited the office of the Madurai Collector to claim compensation for the destruction by fire of the houses of three people. Since the Collector was not in his office, all the above persons—except Kanchivanam, who stayed behind to meet the Collector when he returned to the office—left for the KNR Bus Stand. As they were leaving, Nithianandam was asked by A8, Manoharan, where they were headed to, to which he replied that they were going to board the KNR bus from Madurai to their village. Immediately thereafter, PW1 Krishnan saw Manoharan going in the direction of the phone booth. When Murugesan (D1) and his party boarded the bus, Alagarsamy (A1), Duraipondi (A2), Manikandan (A5), Jothi (A4), Manivasagam (A6) and Deceased Accused Jayaraman also boarded the bus. When the bus arrived at Agraharam Kallukadai Medu, Duraipondi shouted to the driver to stop the bus. The bus was then surrounded by a mob led by Ramar (A40). Alagarsamy then severed the head of Murugesan and ran away with the head. Six persons, all belonging to the Scheduled Castes, were hacked to death—Murugesan, Mookan, Sevagamoorthy, Boopathy, Selladurai, Raja. This brutal assault on Dalits was without precedent. Earlier incidents were aimed at punishing the Dalits for breaking the code of subservience, which has been ordained by the Hindu caste system.10 The upper castes have always felt—and this criminality is very deeply ingrained—that they have an inalienable right to punish erring Dalits. The tradition of oral transmission continues this brutal custom. Offences against the human body and property, as Lord Macaulay visualised in the formulation of the Indian Penal Code, 1860, applied only to persons—and he did not visualise the existence of ‘non-persons’. In the dominant Hindu perspective, Dalits are non-persons; to accuse the Kallars of conspiring against the Dalits is to concede a measure of equality to Dalits. Conspiracy as an offence is supposed to be secretive, and so direct proof may not be available: proof is only possible circumstantially. This legal postulate may be real if the Dalits were to plan the annihilation of an upper caste landlord. But such secrecy is not required in the case of assault by the upper castes on either the Scheduled Castes or the Scheduled Tribes. In the context of fastening criminal responsibility on the members of the upper castes for assault on the Scheduled Castes, conspiracy and other associational offences have to be differently understood. The limitations evolved by a consensus in the Constitution are not recognised as limitations concerning the rights, duties and responsibilities governing our lives in the hierarchical caste structure.


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This is a planned attack on a community, an open conspiracy to deny political equality which gives Dalits the power to take decisions for the entire community—Dalits and non-Dalits alike— living in the Panchayat limits. To understand the setting of the crime, the effort of the Constitutionmakers to guarantee Dalits not merely formal equality but also the very substantive right to being treated equally must be borne in mind. This is the right not to an equal distribution of some good or opportunity, but to equal concern and respect in political decisions about how these goods and opportunities are to be distributed.11 This constitutional guarantee is embodied in Articles 15(2), 17, 23 and 24 of the Indian Constitution, apart from the provision made in favour of the Scheduled Castes in Articles 330 and 332 for reservation of seats in Parliament and the Legislative Assemblies of the State; Article 338 which provides for a Constitutional Standing Commission to monitor the welfare of Dalits; and the 73rd and 74th Amendments of the Constitution which overtly intend to empower people at the grassroots level with provision for reservation. It was the declaration of the Melavalavu Panchayat as a Reserved Category Panchayat in December 1996 that angered the upper castes—in this case, the Kallars. Among the 40 accused in this case, not a single person is a member of the Scheduled Castes. Except Manoharan (A8) and Bharatidasan (A31), all the other accused belong to Kallar caste. There is no dispute about the occurrence of the attack. Pullani (PW44), the concerned Tahsildar of Melur Taluk, spoke about his visit on the same night to the place of the attack and also stated that he had seen six bodies. There were several eyewitnesses and injured witnesses to the attack. The brutal attack was a total defiance of the Constitution and a challenge to law enforcement and the investigating and prosecuting agencies tasked with prosecuting the accused. It is not in dispute that the bus was stopped at an unscheduled stop. The bus was stopped at the instance of Duraipondi (A2) who was travelling in it. He had asked Murugesan at the District Collector’s Office whether they were returning to Melavalavu and by which bus. Murugesan had given him the details, including the purpose of their visit, when they were returning and the name of the bus service they were returning by. After the information was furnished, the eyewitnesses saw Duraipondi proceeding towards the telephone booth. When the bus was stopped, the 40 accused surrounded it and the attack followed quite openly. Murugesan was decapitated in the bus, and Alagarsamy (A1) ran out with the severed head. The accused surrounding the bus were all armed. All the six bodies were lying at the scene of offence, one among them without his head. The manner of the killings, in the presence of the public, silenced all witnesses to the incident. It required extreme courage to speak in court about the incident. This could not have been a spontaneous crime without motive. In fact, no act of violence can be ‘spontaneous’. The chargesheet filed by the Investigation Officer included the offence of conspiracy, Section 120B, offences relating to public tranquillity pertaining to unlawful assembly, being members of and/or joining an unlawful assembly and rioting—all associational offences under the IPC. Section 153A, which punishes any person promoting enmity on the basis of class, caste,

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community and residence, etc., is most often pressed into service only during communal riots between Hindus and Muslims. It obviously would include injuries sustained by the dead as well as the eyewitnesses. Such a major assault would cover almost all the offences against the human body enumerated in that chapter. We are concerned here especially with ‘associational offences’ against the exercise of ‘associational freedoms’. Apart from the above, the accused were chargesheeted under the provisions of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Although the Protection of Civil Rights Act, passed in 1956, penalised almost all shades of Untouchability, it has never been used in all these years. What were the findings by the trial judge? There is no evidence of the words to the effect that they would kill all Scheduled Caste people or that they would kill the deceased. No concrete and direct evidence that the accused had made any gesture by visible action to the deceased. No reliable materials on the side of the prosecution that all the accused joined together and conspired openly or secretly to kill Scheduled Caste people at large. No individual or exclusive enmity or motive on the part of the accused towards the deceased except the displeasure on changing the panchayat board into reserved category. The attack could also have been for other situation or circumstance necessitating the attack. ‘The accused could not have prior intention or prior motive to commit the offences that too due to misunderstanding upon the reserve category and consequent election.’ The trial judge found none of the accused guilty of the conspiracy charge under Section 120B, IPC. He did not believe that there existed a motive for this horrendous crime. The other associational offence of unlawful assembly they were charged with ended in acquittal. The learned trial judge held that this crime was not an ‘atrocity’ under the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act 1989, as he was quite positive that the deceased were not attacked because they were Dalits! Fortunately, the Tamil Nadu High Court took the matter seriously and subjected the evidence in the trial to strict scrutiny. 17 of the 40 accused were convicted by the appellate court because of the continuous effort of Dalits to secure justice. However, the state government failed to prefer an appeal against the unjust acquittal of 23 persons. The High Court, on the evidence, had no difficulty in finding the accused guilty of the offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. If a person who is not a member of the Scheduled Caste commits any offence either against person or property on the ground such a person is a member of a Scheduled Caste, he is liable for punishment under the IPC for a period more than 10 years. There was evidence before the Court (PW1, 47 and 49) narrating the events that took place subsequent to the notification of the Melavalavu Panchayat as a Reserved Category, which led to the slaughter of the elected Dalits. On 10 December 1996, the date for the elections to the Panchayat were announced, but


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the elections could not take place as scheduled because two of the Dalit candidates withdrew their nominations. On 28 December 1996, fresh dates were announced for the elections for the second time. Murugesan (D1) and seven others filed their nominations. There was rioting and booth-capturing in four places by the Ambalakarar community. In the prosecution, A3 and A21 were punished. The elections were postponed. On 31 December 1996, the elections were finally held. Murugesan (D1) and Mookan (D2) were elected president and vice-president, respectively. Murugesan, who was subsequently killed, was prevented from entering the panchayat office after the swearing-in ceremony. The Ambalakarar community did not allow Murugesan to fulfil his function as president. The High Court found that: …the evidence is clear that in order to terrorise the Dalit community and prevent them from contesting the elections they were attacked by the accused party and it occurred solely because they belong to a particular community…. The preplanned nature of the attack and the sheer brutality of the murders was also clearly meant to terrorise the community and to show it as a lesson as to what would happen to them if they decide to contest the elections in future also…what the Ambalakarars could not achieve legally they sought to achieve by resorting to violence and taking law into their own hands.12 It is a clear case, said the High Court, that ‘atrocities’ were committed on the Scheduled Castes, and held that it was a clear case of non-application of mind by the Trial Court. If one looks at this case—in fact, at all cases of atrocities against Dalits and tribes—what hits the eye is the total neglect in observing and abiding by the laws that protect these deprived sections. The neglect is not forgetfulness or oversight but an unpardonably culpable attitude and an unwillingness to give up practices which are indicative of caste domination. When Untouchability, in all its forms, was made punishable, it meant that the tradition in all its aspects stood abolished. It follows, therefore, that all social disabilities imposed on the Dalits are expunged from the Hindu tradition. That is what the Protection of Civil Rights Act 1955 did. This legislation had no retributive character. The penalties imposed by the Act for infraction are not severe. Putting a premium on the presence of liberalism among Hindus, the Act was meant to convert people by such gentle punishments to get them used to Constitutional values. Such penal laws, if relentlessly used, have the potential of bringing about a cultural transformation. After three decades of the Constitution, Parliament had before it the record of the enormity of the crimes, and this is revealed in the Statement of Objects and Reasons of the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act 1989: Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied 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. 2. 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 the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded or forced labour, the vested interest try to cow them down and terrorise them. When the Scheduled castes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the government allotted lands by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and Scheduled Tribes. Under the circumstances, the existing law like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special legislation to check and deter these crimes against them committed by non-Scheduled Castes and nonScheduled Tribes has therefore become necessary. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 defined ‘atrocities’ as an offence. The very meticulously inventoried types of atrocities employed against the Dalits should normally put the dominant castes to shame. If one wants to understand and interpret the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, one should read with care the entire list of atrocities enumerated and the Statement of Objects and Reasons for the Act. So long as one reads only the sub-division of the concerned sub-section, one would be doing only lip service to the problem and the society would continue to fester in this caste status quo. When there is an overall indifference to the transformation of the socially disinherited, it is impossible to deliver political and social justice in any meaningful manner. Atrocities perpetrated against them will not be seen as such. The judgements will be as puerile as the judgement of the trial court in the Melavalavu massacres. These are conspiracies outside the law, for which people have no redress, especially because the commitment of the judiciary to the Constitutional consensus on the problem of caste has been, at best, ritualistic. The Dalits have been given the political right to contest to the presidency of a panchayat. Every Dalit in such a constituency may aspire to seek a representative status in the panchayat.


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This right accruing to Dalits is an associational freedom enjoyed by them collectively as a political constituency that is free from any restraints, which freedom is permitted them by Article 19 of the Constitution. This is apart from the political organisations that they form for themselves. This larger right is challenged by the upper caste’s associational offences of conspiracy, unlawful assembly and rioting, with the common intention to commit all these offences without any effort to conceal either the intention or the assault. In the faltering democracy of this country, all the institutions dealing with justice covertly support the private actors who mount an assault on associational freedom. In cases against Dalits, it is not difficult to decipher the evidence of the assault, but the various State actors who participate in the prosecution must be educated about the Constitutional consensus and vision while prosecuting the accused. Such prosecutions should lead to the cultural transformation of the CJS from the judge downwards.

Collective Violence against Minorities In a plural society, how does one look at crimes by the dominant majority against one or other of the minorities? In the context of the adversarial system of politics, will it not be necessary to work out the jurisprudence, a separate set of evidentiary rules, to assure justice to the minorities? Should we not extend the principle of constructive responsibility, which is extended to unlawful assemblies and conspiracies by the penal code, to acts of collective assaults showing genocidal trends? Episodes of collective violence—against the Sikhs in 1984 in Delhi, in Bidar against Muslims after the demolition of the Babri Masjid in 1992, against Muslims again in Gujarat in 2002—have disclosed to us the inadequacy of our institutions to cope with these situations. First, there is institutional inadequacy in terms of jurisprudence and juristic principles that should be deployed to deliver justice to these communities. Before embarking on this debate, it becomes necessary to address the problems faced by the minorities at the hands of professional lawyers, judges at various levels, public prosecutors, law-enforcing agencies and the adversarial political process, all of which are wholly unequipped to deal with plural character of Indian society. Writing on the situation of minorities in the late 1990s, Javed Anand said: The killing of innocent people in the bomb blasts in Mumbai in March 1993 and in Coimbatore in 1998, which were a desperate response to the killing of Muslims that took place a few months earlier, can never be condoned and justified. But nonetheless, they remain a grim pointer to the fact that by failing in its duty to protect the life and property of all its citizens the Indian state has sown the seeds of Muslim extremism.13

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Anand quotes Fali S. Nariman as saying: When judges speak, what they say (and significantly what they do not say) sends down strong signals. People listen and shape their actions. The message conveyed by the judgment lies in as much as in what it does not say as in what it does. The message clearly is that the intemperate words (of Thackeray) against a particular community likely to cause disharmony will not only go unpunished, but will not suffer even a judicial rebuke.14 The question which one is confronted with is: how do you work out the rule of law when riot and a ‘counter-riot’ followed close on heels of one another? How does one work out Article 14 if in the riot there is shoddy or no investigation and the ‘counter-riot’ is ostensibly fully investigated and implicates the counter-rioters? We have three pairs of such riot and ‘counter-riot’ situations: The post-Babri Masjid riots in Mumbai and the March 1993 blasts in the city; the Coimbatore blasts (14 February 1998) case; and the Godhra riots and the post-Godhra communal carnage in 2002. While my confrontation with this riot and counter-riot syndrome was theoretical in two instances, in the Coimbatore blasts case, the issues raised became real. How does one square Constitutional values with this kind of social violence where majoritarian social violence is let off the hook while (similar) crimes committed by the minorities, purportedly as redress of earlier wrongs, are punished? These blasts were planned as ‘a retaliation to the killings of 18 Muslims in communal riots and police firings and extensive damage to Muslim properties running into crores of rupees during the three days following the murder of traffic constable Selvaraj at Ukkadam, Coimbatore on 29.11.1997’. PW 1300, the Chief Investigation Officer, was not able to tell the court what steps had been taken to prosecute the Hindu vandals with reference to the murders, arson and looting of Muslim properties. This problem is not unique to the riots in Coimbatore. Justice Srikrishna, who headed the one-man commission on the Mumbai riots, pointed out in Para 103. 165: The working of the Special Investigation Squad is a study in communal discrimination. The officers of the squad systematically set about implicating as any Muslims and exculpating as many Hindus as possible irrespective of whether they were innocent or guilty. Cases of many Hindus belonging to the Shiv Sena, Rashtriya Utsav Mandal (an extension of the local branch of the Jan Sangh) were wrongly classified as ‘A’ category and investigation closed and no proper investigation was undertaken into several complaints of murders of Muslims and arson of their properties. No investigation was conducted into the composition of Hindu communal and allegedly communal organizations operating in Bhiwandi, but only in respect of Muslim communal and allegedly communal organizations.15


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The situation in Coimbatore preceding the blasts was no different. There were arson, murders, looting, rioting and explosions both before and after the blasts. In a Constitutional system, if Articles 14 and 21 remain suspended in one case and become enforceable in another related one, there is an undermining of Constitutional governance and the rule of law. It is a situation which invites private justice. Enforcing law against crimes that are a consequence of those committed earlier and ignoring the crimes committed earlier appears to be a weird understanding of the rule of law and of the Constitution. Attacks on minorities can no longer be considered communal riots—they are the systematic and planned targeting of minorities; they are genocide.16 Although states parties are signatories to the Genocide Convention, none of them have introduced genocide as a crime in their criminal codes. In fact, many states do not wish to admit the existence of minorities; they do not wish to accord them minority status. India is not an exception. On the question of minorities, there has been no comprehensive understanding of the dangers they were exposed to at the hands of a belligerent ruling religious majority. Sardar Vallabbhai Patel, while introducing the report17 of the Advisory Committee for the consideration of the Constituent Assembly, prospectively overruled the issues that were raised later by the minorities and continue to haunt us today: It is not our intention to commit the minorities to a particular position in a hurry. If they really have come honestly to the conclusion that in the changed conditions of the country, it is in the interests of all to lay down real and genuine foundations of a secular state, then nothing is better for the minorities than to trust the good sense and fairness of the majority, and place confidence in them.18 We are yet to conceptualise crimes against minorities although they were introduced in their rudiments by amendments in 1969 and 1972 in the IPC. Judges look into the Constitution and find that the term ‘Minority’ is not defined there—as if the Constitution is a law lexicon. When major attacks on minorities commenced in a big way, there was no law that would ensure a rule of law that covered all communities living in India and assured them of the application of punitive and preventive measures. The CJS, in this context, is the great teacher. What large numbers of the population know or believe about the legal order is derived principally from their observations of, and sometimes participation in, the CJS. Such impressions are, therefore, powerful determinants of fidelity to the law as demonstrated by the citizenry.19 Fidelity to the law depends on the character and quality of the concept of equality that spans the civil and criminal spheres of peoples’ lives. The first condition for ensuring fidelity to the law is recognising minorities and working out conditions to enable them to claim the right to equality. Minorities have been defined in different ways. The Permanent Court of International Justice, for instance held that:

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A minority is a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by this tradition of race religion, language and a sentiment of solidarity, with a view to preserving their traditions, maintaining their forms of worship, ensuring the instructions and upbringing their children in accordance with the spirit… of their race and rendering mutual assistance to each other.20 Capotori21 and Deschenes’22 views on the definition of ‘minorities’ are useful. While they are both agreed on three points of difference—numerical inferiority, non-dominant status and ethnic, religious and linguistic characteristics—from the majority population, the difference in their views centres on what might be the essential attribute of the category ‘minority’: Deschenes does not feel that preservation of identity constitutes an essential attribute of the minority situation. He observes that these minorities, while wanting to retain their identity, might consider it desirable to integrate or assimilate with the mainstream. He is of the view that the minorities’ collective will to survive and their desire to achieve equality with the majority is a more appropriate approach towards minorities rather than focussing on the desire to preserve their identity.23 In looking at the phenomenon of assault on minorities as a distinct category, my focus is on institutional behaviour, especially its failure to adopt and adapt law to the complexities of sociopolitical life already anticipated in the Constitution. The refusal to define and recognise minorities is, in fact, a deprivation of the Constitutional guarantees to human dignity, fraternity, secularism and equal citizenship, especially as embodied in Articles 14, 15(1), 16(1) and 21 of the Constitution. While disrespect to Constitutional values can be traced to various offences in the IPC, when mass crimes have been committed against a targeted group, a radical understanding of associational offences such as conspiracy, unlawful assembly and rioting has not informed the prosecution of the perpetrators. It is unarguably true that penal laws are not restorative. However, it is also true that their presence and availability are believed to train citizens into habits of legality. A law that penalised violence against minorities might, therefore, have shaped behaviour and relationships in a plural context like India.

The Assassination of Shankar Guha Niyogi Basically, that is to say from the purely sociological stand point, the bourgeoisie maintains its class rule by means of its system of criminal law. In this respect its courts and its private, voluntary organizations of strikebreakers are pursuing one and the same end.24 —E.B. Pashukanis The murder of Shankar Guha Niyogi, a very popular trade union leader, undermines the Constitutional promise of an egalitarian social transformation.25 The key words delineating the


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Constitutional promise are socialism, equality, and political and economic justice set out in the Preamble. The fundamental obligations of the State are enumerated in Part IV of the Constitution, by which the goals specified in the Preamble are to be secured. The Constitution has an economic philosophy which shall inform all the institutions of national life and the State is mandated to structure a social order which secures to its citizens and others resident in its territory all facets of justice. It does not say that expropriators should be expropriated. Its aim is modest and not beset with incomprehensible jargon. It states that the ownership and control of the material resources of the community are to be so distributed as to best serve the common good; that the operation of the economic system should not result in the concentration of wealth and means of production to the common detriment. This restraint on the avaricious appropriation of material resources and on the acquisition of opulence is necessary to transform India into an egalitarian society. Contemporary Indian society should ensure to all working men and women adequate means of livelihood; there shall be equal pay for equal work for both men and women; the health and strength of workers and the tender age of children should not be abused and no one should be driven to avocations unsuited to their age and strength. Children should be allowed to develop in health, freedom and dignity and they should not suffer moral abandonment and exploitation. These mandatory obligations are politically enforceable by citizens through the exercise of associational freedoms, which the Constitution recognises as inhering in the people. Shankar Guha Niyogi was organising workers for around two decades in the Rajhara mines, which supplied iron ore to the Bhilai Steel Plant in Madhya Pradesh. He formed a central trade union organisation, the Chattisgarh Mukti Morcha. Niyogi had decided on organising the unorganised labour in that area, and so took up residence in Bhilai in 1990, setting up an office as well. His family lived in Rajhara. The settlement he brought about with the ACC Cement factory in Jamul, Bhilai, in respect of the contract labour they employed was an unprecedented success. This increased his following among the working class in the industrially developing Durg district. Niyogi focussed his attention on the plight of the working class in the emerging corporate tigers in Bhilai, of which the Simplex Group was one. These corporate tigers ran their fledgling capitalist enterprises as a feudal lord would his fiefdom. Niyogi took the Constitution and the rights guaranteed therein seriously. His entire struggle after he entered Bhilai was towards improving the lot of the workers employed by the Simplex Group. The struggle he carried on there, and the Gandhian tenacity he displayed during that period, made him a legend in his lifetime. His faith in the Constitutional promise tenaciously drove him to enforce that promise in the Durg area of Madhya Pradesh. In fact, on 11–12 September 1991, Niyogi submitted a representation to the President of India to intervene and to resolve ‘long-standing problem of workers and their (i) Right to life and bodily security as per Article 21 of the Constitution; (ii) Right to form Trade Unions as per Article 19(1)(a) (b) & (c)’. He brought to the notice of the President two basic demands of the workers: that the workers be regularised

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when work is of a permanent nature in the industry, as per Section 10(a) of the Contract Labour (Regulation and Abolition) Act. He presented this memorandum, perhaps his last one, personally to the then President Venkataraman, who had himself entered politics as a labour leader. Legally, the memorandum may have relevance as a statement made by a dead person, on the basis of which an investigation could be started. If the Central government had taken serious note of it, this representation could have been the basis for protecting the right to life of a trade union leader. Nothing happened. Niyogi’s murder, according to the prosecution, was a consequence of organising workers—especially of contract and other workers in the unorganised sector—and starting a struggle for better wages and work conditions. Labour in the unionised organised sector would be roughly 8 per cent of the total, with 92 per cent in the unorganised sector. While the Bhilai Steel Plant has an organised trade union, the labour working in small industries around it were left unorganised by the central trade unions. These small units also needed trade unions for effective collective bargaining. In the meanwhile, through a subverted interpretation by the courts, a law legislated to abolish contract labour and to regulate the labour, namely, the Contract Labour (Regulation and Abolition) Act, 1970, became a law for the perpetuation of contract labour with no security of tenure. Not more than 10 per cent of the workers in the entire Bhilai Durg industrial sector were in the permanent labour status; the rest were employed as ‘contract labour’. The adversarial system of courts reduced adjudication of issues to battles of attrition between capital and labour extended over tiresomely long periods of time. After four decades of the Constitution, during which every principle of equality was defeated, Niyogi entered to fight for principles which had been comprehensively routed. The Simplex Group of industries, numbering around five, removed 973 workmen. There were daily protests and demonstrations. The charter of demands would be raised; the service of these demand letters would be refused and disputes stoked. The Conciliation Officer would enter upon conciliation under the Industrial Disputes Act and would invite the parties to the dispute. The management of the Simplex Group never attended these meetings, while the workmen did.26 There was a total defiance of the law by the Simplex Group.27 Niyogi decided to wrest the guaranteed rights politically. In response, the employers’ engaged goons to disrupt their protests by beating up the workers. Two members were murdered by the employers’ hirelings. Section 144 of the Criminal Procedure Code was promulgated, suspending associational freedoms. Injunction orders, which had the effect of imposing prohibitory orders, were obtained from the civil courts against the protesting workers. Criminal prosecutions were launched against Niyogi and his men in several jurisdictions. This has been the way the labour has been fought through the courts. This subversion is accepted as part of the rule of law and so the paralysing of the functioning of a trade union leader do not amount to committing unlawful acts.


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This may not fit into the definition of the crime of conspiracy. When a dispute is referred to the Tribunal, the employer challenges the jurisdiction of the tribunal, in a matter that he does not consider to be an industrial dispute in the appellate courts, so that by the time the matter is taken up for trial, decades pass. All these efforts by the Simplex Group to break the back of the movement led by Niyogi did not succeed. The unrelenting pursuit of their movement affected the Simplex Group financially.28 What were the salient aspects of the Simplex management’s views on Niyogi? (1) Niyogi’s increasing influence is due to the failure of the District Administration in dealing with him. (2) There should not be any hasty action for dealing with Niyogi. (3) Rival trade unions should be given more importance. (4) Niyogi’s shortcomings must be written about daily in the newspapers. (5) The subordinate police officers who give him information and sympathise with him should be transferred. (6) Niyogi must be compelled to appear in all the criminal cases pending against him in Balod, Durg, Rajnandgaon and Bilaspur where there are arrest warrants against him, so that he will have no time to strengthen his position. (7) His legitimacy with political parties and the district administration in the region must be undermined systematically, and his financial sources sealed. These Kautilyan guidelines failed. Around midnight of 27 September 1991, Niyogi returned to his residence in Bhilai and went to bed around 2 or 2.30 a.m. Bahel Ram, who was also asleep in the quarters, woke up to a loud explosion and found Niyogi writhing in his bed. By the time Niyogi was taken to hospital, he was dead. One hundred and ninety-two witnesses were examined and the prosecution exhibited 455 documents in proof of the prosecution version. The investigation was detailed, and every aspect was subjected to scrutiny. The trial judge dealt with evidence brought on record very meticulously and came to the conclusion a) Moolchand Shah, A-5, the head of Simplex Group and the documents recovered from Shah’s residence showed that he targeted Niyogi; this was confirmed by the entries in Niyogi’s diary and the cassette Niyogi recorded prior to his death. The hireling murderer, Paltan Mallah, A-9, till then a small-time rowdy sheeter, mentioned in his extrajudicial confession, the names of the accused, and also stated that there was an open conspiracy to malign and attack Niyogi and the workers through the hired gang of the employer–accused Moolchand Shah.29 The important thing to note is that all the while that Niyogi was engaged in a struggle to enforce Constitutional obligations made available to him through legislation, the Simplex Group

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was using unlawful methods to suppress the rights of the workers and Niyogi’s right to head the trade union of which they were members. There was no relationship between Moolchand Shah and his brothers and Shankar Guha Niyogi excepting that of employer and trade union leader of Shah’s workmen. The tenacious movement to secure the demands, and the employer’s refusal to abide by the law relating to the settlement of wage disputes, could have formed a powerful motive for the crime. The trial judge, T.K. Jha, did not extrapolate the crime from its setting. He studied the evidence in context and the inferences he drew were convincing. In fact, the sequential events dovetailed into a conspiracy to commit a capital crime. Movement by Niyogi and the motive for the crime: From the evidence gathered by Central Bureau of Investigation (CBI), the investigating officer came to the compelling conclusion that Simplex Group was the most affected by the workers’ agitation production-wise and prestige-wise, which led to the decision to eliminate Niyogi. Beginning of conspiracy and its apprehensions: While the Simplex Group was openly defying the law and the Constitution, it did not realise that committing a capital crime pursuant to that defiance was another matter altogether. The first intimation of the conspiracy was an anonymous letter received by Niyogi at Dalli Rajhara, which he photocopied and handed over the original letter to the police station at Rajhara. The anonymous letter was a piece of information credible enough to set the ball rolling. It gave details about the trip of Chandrakanth Shah (A1), brother of Moolchand Shah, to Nepal and that Chandrakanth Shah did go to Nepal along with Accused 2 to 4 (A-2, Gyan Prakash Mishra, A-3, Avdesh Rai, A-4, Abhay Kumar Singh—personal mafia of the Simplex group),30 and the investigation recovered documents and recorded oral evidence on this aspect of the conspiracy. The entire Nepal trip, which was not disputed, was covered by evidence that could not be rebutted. The plea that Chandrakanth Shah, brother of Moolchand Shah, went on a pilgrimage to Kathmandu was rejected by the trial court for very convincing reasons. What has not been taken note of seriously was the fact that he visited Kathmandu in the company of co-conspirators and the accused in this case. This, according to the Sessions Judge, was part of the conspiracy and not a pilgrimage, since the first accused had not gone to Nepal with members of his family. The visit to Nepal by these accused persons and the recovery of a bill did not advance the prosecution case to prove the criminal conspiracy alleged against them. The reasoning of the Supreme Court regarding the conspiracy charge was not very different from the reasoning of the High Court. The organisation of labour by Niyogi, and the evidence of opposition to the agitation, were wholly ignored by both courts. Here is the sum and substance of the appreciation of evidence by the Supreme Court: Several witnesses were examined to prove that Simplex and Kedia Distilleries were acting against the interests of the workers and there were series of agitations by the workers against the


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factory owners. Evidence was also adduced to show that some workers were retrenched from Simplex and the agitating workers wanted the reinstatement of the retrenched workers. Some of the witnesses examined by the prosecution turned hostile and did not support this version. The overall evidence given by the prosecution would only show that some agitation had been going on against the management of these industries and the deceased Niyogi was spearheading many of these agitations. This by itself would not prove the prosecution case of conspiracy.31 The prosecution by cogent evidence established that the struggle carried on by the workers led by Niyogi was to secure rights granted to the workers by various laws, that the employer-accused had been systematically flouting all these laws and that, in addition, they had used violence, both overt and covert. Barring the trial court, which convicted the employer-accused, both the High Court and the Supreme Court would not take into account the systematic flouting of the labour laws applicable to the establishments of the accused as a conspiracy leading to the conspiracy to kill Niyogi. The prosecution built the conspiracy charge based on the entire period of Niyogi’s assumption of leadership of the workers, the demonstrations, the injunctions by civil courts in the matter governed by the Industrial Disputes Act, the employer’s refusal to attend conciliation meetings under the latter meeting, the attack on the workers and various other issues. A combination to violate without just cause, private rights contractual or other in which the public has a sufficient interest is wrong. It is not necessary, in order to constitute a conspiracy, that the acts agreed to be done should be acts, which if done, would be criminal…. A combination without justification to insult, annoy, injure or impoverish another is criminal conspiracy.32 Yet the Supreme Court held: The entries in the diary and the representation Niyogi had submitted to the President of India were in general terms. He apprehended some danger at the hands of some industrialists as the agitation of the workers had been going on and in some instances the henchmen of the industrialists had unleashed physical violence on the workers. Even though he had mentioned the names of some of the accused persons in the diary and in the cassette, that by itself may not be of any assistance to the prosecution to prove the case as the entries in the diary and cassette do not refer to any event, which ultimately was the cause of his death.33 Admittedly, like all conspiracy charges, it was based on circumstantial evidence, where every link in the chain of evidence has to be established. On the basis of these and other material, the CBI carried on the investigation, which revealed that the Simplex Group had been the most affected by the agitation carried on by Niyogi. The CBI uncovered and discovered evidence of role of each of the brothers and their hirelings. In fact, Paltan Mallah filed a petition to include Kedia as one

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of the accused. On this application, evidence was led in and arguments advanced and the application rejected. This fact was adverted to in the judgement of the trial court. The other items relied on by the prosecution to prove the case against the accused were the various recoveries by the investigating agency. But none of these items could prove the involvement of the accused in the conspiracy. These items included the Ex. P-239 slip recovered from the office of the first accused, which showed the registration number of the car which was being used by Niyogi and also the registration number of a jeep registered in the name of the Chattisgarh Mukti Morcha. This, according to the prosecution, showed that the accused were watching Niyogi’s movements. We are not able to attach any further importance to these documents. Another document was the Ex. P-298, which was a letter alleged to have been written by the second accused to the sixth accused indicating that he had received Rs 20,000 for the work he had done. The recovery of this letter by the investigating officer is surrounded in mystery. It is alleged that it was found in torn pieces and this letter is alleged to have been recovered on 15.12.1991 by the investigating officer when a search was conducted in the office of the first accused. The case of the prosecution is that the money transaction indicated in Ex. P-298 is the consideration given to the second accused for having caused the death of deceased Niyogi. PW-158 Devendra Jain was alleged to be the person who delivered this letter to the first accused, but he turned hostile and did not support the prosecution. Even if the letter is assumed to be true, it would only show that there was some money transaction between the second accused and the sixth accused and in no way it is proved that the amount of Rs 20,000 alleged to have passed between the parties was in consideration of the illegal act carried out at the instance of the second accused. The High Court was justified in not relying on this document.34 The prosecution relied on the arrangement of granting the contract for a cycle stand in a cinema theatre named Maurya Talkies. PW-102 Kamaluddin was examined to prove this fact. He deposed that the contract had been taken in the name of Avdhesh Rai (A-3) and the income from the cycle stand was deposited in Syndicate Bank in the account of the second accused. This, according to the prosecution, was an arrangement made at the instance of A-8, Baldev Singh Sandhu. PW-102 does not know anything about the nature of this transaction and there is no other evidence, oral or documentary, to show that the contract of the cycle stand at Maurya Talkies had anything to do with the murder of the deceased Shankar Guha Niyogi.35 Evidence appreciated in this manner would certainly lead to acquittal because of a misapplication of law, where every link in the chain of evidence is discredited individually and then the


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evidence established by circumstance rejected. The correct application of the law would involve the establishing of every link in the chain of evidence, but once the circumstantial evidence is in place, it cannot be discredited in a disaggregated fashion, but must be evaluated as a whole. This case, as also the two cases discussed earlier in this chapter, points to the gap in the understanding of the rule of law by the judiciary and the understanding of the rule of law woven into the Constitutional scheme. In the grammar of the Constitution, the thrust is on economic and political justice; the interpretation of criminal law and procedure should in no way serve to sustain and perpetuate the status quo. In the case of the trial for Niyogi’s murder, the investigation did not provide any room for the court to reject the theory of conspiracy presented by the prosecution and found to be proved by the trial judge, unless there was reliable evidence to dislodge the prosecution evidence. This was the first case—perhaps in the world—where employers along with their hirelings were convicted by any court on charges of conspiracy and murder of a trade union leader. The judgement in the Court of Sessions was a very analytical appreciation of evidence, keeping in view the rights that flow out of labour laws and the Constitutional promise. The Sessions Judge viewed the events from the commencement of the workers’ movement to the murder of the leader as a continuum. In that view, no link in the chain of circumstances supported the postulate of innocence of the accused. It is my argument that unless the crime is contextualised in the employer-employee dispute, in these cases justice can never be done.

Preventive Detention and Political Dissent Ever since the Constitution came into force, political dissent in India has been managed with the help of preventive detention laws. Seen as the most efficient way of containing the politics of dissent by physically barring free speech and movement, the use of preventive detention has been validated by courts for decades. A person arrested for his politics is simultaneously denied his right to free speech, freedom of movement, his right to association (for it disrupts his associational freedom), his the right to assembly (for it deprives the assembly to listen to him), his right to communicate his views to the assembly, and, in fact, his right to organise and lead a procession which the Supreme Court described as a moving assembly. The policy of preventive detention was approved from A.K. Gopalan (1950) onwards through Makkan Singh (1964), Fagu Shaw (1974) ADM Jabalpur (1975) to A.K. Roy (1980).36 This section will look at how the Constitutional government reacted to the Naxalite movement in the state of Andhra Pradesh, and at how the laws and legal machinery were used to deal with the situation. For a communist revolutionary, Guthikonda Bilam37 is an important event. It is here that final touches were given to the course the armed struggle would take. While for the liberal Left,

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‘The God That Failed’38 forewarned the distortions that surfaced in the communist system much before its ‘collapse’, for communists in this country the debate was about the differences between the Soviet line of the post-Stalinist era and the Chinese line as propounded by Chairman Mao. The Soviet line after Stalin came to be characterised as ‘social imperialism’ and the Chinese line of Chairman Mao as the ‘correct path’. The meeting at Guthikonda Bilam took place from 26 February–2 March 1969. Charu Majumdar emerged as the leader of the group that believed that it was time to start the armed struggle; in the course of campaigning for the views of the Naxalbari line, he came South. So did his colleagues Bharat Choudhari, Saroj Dutta and Ajith Sen. This meeting took place during the period of fierce polemics in that sleepy village located at Narasaraopet, 64 km from Guntur. The delegates to this important meeting were a few Naxalites who travelled by two taxis. They held their deliberations in the nondescript temple premises located on a hilltop which provided the camouflage for the preparation of the armed struggle. Around 1980, Charu Majumdar’s adherents rechristened themselves as Communist Party of India (Marxist-Leninist) Peoples War. Choudhari Tejeswar Rao, Y. Koteswara Rao and K.G. Satyamurthy were among those who met there. On 1 March 1969, Charu Majumdar addressed the delegates on the ‘Naxalbari. Uprising’ and also spoke about the theoretical formulation of that struggle, which was to have for its model the Naxabari struggle. All those who met there unequivocally elected the Chinese path. A State Coordination Committee was formed and resolved to form coordination committees at the district level. To claim an international character for their line, they declared Chairman Mao as their chairman. These people were being prosecuted through a varied assortment of conspiracy prosecutions. Following the colonial tradition, the Indian government used pre-Constitutional law, underwritten by anti-communist colonial rhetoric, to physically liquidate communists, much as the British government had done before them. It may be useful to detail the situation in the tribal areas during the period when the Naxalbari movement spread to the tribal areas of Srikakulam. Charu Majumdar stated in his political statement before the court that: …there was no conspiracy as such by the accused but there was an open fight by the girijans for their rights against the land lords and money lenders and other exploiters of the Srikakulam agency areas. The girijans of the agency area and Srikakulam district fought for the restoration of their lands in the hands of moneylenders and landlords, who exploited them and for occupying Banjar lands and for resisting the collection of boosted up loans. There was no secret in the agitation of the girijans against the exploitation by the landlords and the moneylenders and the atrocities committed on them when they fought for their rights…. In order to suppress the girijan struggle the Government conspired and foisted this case.39


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All the accused stated before the court that when the girijans were organising themselves into a sangam (union), and for that purpose were holding a conference on 31 October 1967 at a place called Mondemkal, the landlords, headed by Mededi Satyanarayana, opened fire on them, killing two girijans, Korranna and Manganna. This sparked off the Srikakulam Girijan Revolt. Quite a few of the accused were lawyers: they were putting the Constitution, its values and governance to the test. In containing the spread of the Naxalite movement, the State embarked on the illegitimate use of the legal system and the Constitution. Medadhi Satyanarana, who sparked off the Srikakulam movement, was let out on bail; the protesting girijans and their leaders were arrested and held in custody in various jails. They were unable to furnish bails or produce sureties because they had no lawyer assistance immediately after their arrest, and the sum stipulated by the courts was onerous. While the people of Srikakulam, Vishakapatnam and East and West Godavari districts were involved in several cases, for all the overt acts in the various areas of the state, an ingenious police officer thought out a method of prosecution which set the trend in dealing with Naxalites in the state. The conspiracy prosecution involved all the leaders of the movement by linking up the sum total of all the crimes registered under various police station jurisdictions in the state of Andhra Pradesh. The Parvathipuram Conspiracy, as it is popularly known, was filed as a private complaint by S. Veernarayan Reddi. It was also registered as a crime under the IPC and a chargesheet was filed in respect of the same 140 accused. The supplemental strategy was to use the AP Suppression of Disturbances Act, 1967. This enactment by the provincial legislature of the Madras Province was to contain the spread of the Communist movement from the Telangana areas, where an armed struggle was already going on. Under the AP Suppression of Disturbances Act, all the tribal habitats of the Scheduled Areas became notified areas, which empowered a sub-inspector to shoot to kill on an assembly of five persons and more. Used for extrajudicial killings during that period, this provision was used with greater effect in the newly-formed state of Andhra Pradesh. The extrajudicial killings, alongside conspiracy prosecutions, are a practiced political strategy which are provided a thin veneer of the rule of law. These quasi-political cases, when compared to ordinary crime prosecutions, are widely publicised so that the public tends to believe that accusation is proof, even while extrajudicial killings are removed from public scrutiny. Although a conspiracy is an offence by itself, the illegal act agreed upon has to be specified. The chargesheet filed under Section 173 after the registration of the crime under Section 154 of the Criminal Procedure Code (CrPC) and the investigation under that chapter indicted 140 accused for the offence under Section 120B for conspiracy to commit murder (302), dacoity (395), robbery or dacoity with attempt to cause death or grievous hurt (397), attempt to commit robbery armed with deadly weapons (398) and making preparation to commit dacoity (399). The private complaint filed by S. Veernarayan Reddi was meant for prosecuting them for offences against the State, that is, conspiracy to wage war under Section 121A, waging war or attempt to war against the lawfully

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established government under Section 121, collecting arms with the intention to wage war under Section 122, concealment with the intent to facilitate design to wage war under Section 123, and sedition under Section 124A. What ought to have been filed by the State was filed in the name of the Deputy Superintendent of Police in his own name. The offences under which they were prosecuted were based on the facts set out in the chargesheet. The facts set out dealt with the split in the Communist movement and referred to the ideological differences within the Communist Party since 1962; that the two schisms held their respective congresses in Bombay and Calcutta, respectively, in 1964; that there was a further difference within the Communist Party of India (Marxist) and the further split; that there was the formation of the AP State Coordination Committee and the later merging with the All India Coordination Committee; the various details of the formation of district and taluk committees; the names and roles of each one of the accused since the first split; the several conspiracy meetings that took place; the principal meeting in Guthikonda Bilam in Guntur District on 2 March 1968; and that 23 such meetings were held between 2 March 1968 and 27 January 1970 at various places within the state as also in other states, as listed in the very first charge.40 The chargesheet laid emphasis on the acceptance of Mao’s philosophy of armed revolution as against faith in the Constitution and the Parliamentary path. The chargesheet and the evidence led laid emphasis on the political beliefs of the accused and stated that the offences committed were motivated by their beliefs. In reality, party activities were made criminal and were implicated as a matter of course. Of the 23 meetings, almost all were public, which, if read as a conspiracy, would be a direct erosion of the freedom of assembly. The existence of sedition as an offence implies that the audience of such a meeting is not culpable. Such an understanding of law erodes the value of the freedom of opinion. The prosecuting method used in the Meerut Conspiracy finds a reiteration here in independent India—a comparison that is compelling despite the fact the communists who differ with Naxalites might find it abhorrent. The British portrayed communist methods and deeds in the same way as S. Veeranarayan Reddy portrayed Naxalite methods and deeds. The charge against Meerut prisoners, as set forth in the speech of prosecuting counsel, was in itself an affront to the usages of British justice…. He relied entirely upon a general charge of conspiracy, arguing it is part of the thesis of communism to overthrow the state by violence—a fact which no communist denies and which needs no proof—and that such organizations as the Third International, Pan Pacific Trade Union and the League against Imperialism are in fact part of the communist organization. And directed from Moscow. From this it is argued that any one in any way connected with the Communism is party to a seditious conspiracy, whether the person charged can actually be proved to have ever contemplated and actions likely to lead to violence and intended to lead to sedition.41


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It was considered to be a far-reaching conclusion with dangerous implications. These were the views expressed when there was no Constitution and entrenched fundamental rights. A conspiracy charge will always end up being qualitatively different from the legal definition, and the conspiracy indictment, in this instance, was virtually similar to suspending all associational freedom, with the added possibility of forfeiture of liberty. For the State, once a crime is registered for conspiracy, Section 10 of the Evidence Act becomes operative and everybody becomes a suspect. In avowedly political cases, the primary requisite is to wrongfully detain persons, for that will effectively suspend free speech, association, assembly and movement of the detainees, which was overlooked by courts in preventive law decisions that they had rendered. Any movement produces literature, the spread of which must be stopped for the movement to be restrained. The move to seize copies gives the police the opportunity to raid houses in search of documents on the fiction of acting on credible information that the intelligence department has received. Books and articles in the Naxalite News Sheets and journals such as Liberation were seized in the raids. Using the courts to provide an illusory framework of rule of law, these works were banned under the provisions of the CrPC. The Special Bench lifted the proscribing order even while observing that they could be prosecuted for sedition. A woman, Hemlatha, wife of revolutionary poet Varavara Rao, registered as the publisher of Srujana, Warangal, was promptly prosecuted: her bail was cancelled and she was arrested when she was in full-term pregnancy. Almost contemporaneously with the Parvathipuram Conspiracy, the prosecution filed what is known as the Secunderabad Conspiracy Case. The first meeting for both these conspiracies was the Guthikonda Bilam meeting, although charges were framed under offences registered in two different conspiracies. The main thrust in the Secunderabad Conspiracy Case was against revolutionary writers and poets, among whom quite a few were well known.42 This case carried on for 15 years. All the undertrials were in prison for five to six years. In 1980, the appointment of three Special Public Prosecutors was questioned by writ of quo warranto as they were not qualified in terms of the provision of law for holding such positions. The way the law was subverted is more important. The Principal Public Prosecutor was KVL Narasimha Rao,43 a retired District Judge who had tried, prior to his retirement, Nagabushanam Patnaik for murder. At the time of Patnaik’s trial, the Naxalites had decided not to defend themselves, and so the trial went on without the accused participating in the trial. In the ex parte trial, Patnaik was sentenced to death. On retirement, the judge was appointed a Public Prosecutor in the trial against the accused in the Secunderabad Conspiracy Case. All the accused were let out on bail after the three Special Public Prosecutors were removed from their posts. T. Nagi Reddy44 and his group did not seem to agree with the thesis of individual annihilation of class enemies, among other differences. Along with his group, he decided to work out their own path to bring about an armed revolution. Their activity to bring about a Peoples Democratic Revolution was put on trial as a conspiracy. He was charged under almost the same sections, but

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with an emphasis on trespass, since the movement helped the poor to occupy land. After a prolonged trial, they were all convicted for the conspiracy to commit trespass and sentenced to four years. The appeal in the High Court confirmed their sentences. In all these conspiracy cases, the accused meticulously chronicled the brutality and the cruel treatment they were subjected to, as well as the manner in which people apprehended were killed in extrajudicial executions. The deployment of violence after apprehension and the imperviousness of successive political governments to this violence are not features of either the rule of law or of Constitutional democracy. While all the conspiracy cases were thrown out and the accused acquitted, quite a few of the accused were eliminated in extrajudicial executions. But the disturbing part of this exercise is that extrajudicial executions have become part of the administrative practice of the State. The Supreme Court was not interested in taking it up partly because of its mistaken belief that interference would help extremist violence. The National Human Rights Commission had pending before it about 400 killings, out of which it found four guilty. Both institutions of justice and the administration are wary of fully implementing the rule of law. We have a manifesto of fundamental duties set out in Part IV A, with one of them being to urge us to cherish and follow the noble ideals that inspired our freedom struggle. When Gandhiji told Judge Broomfield, ‘it is a virtue to be disaffected towards a Government which has totally done more harm to India than any previous system…,’45 he was not just individually defying British rule: he was defining the principle of resistance to misrule, whether it be Indian or colonial. This principle comes into operation in a situation in which, over a long period, fundamental Constitutional obligations have been ignored. We cannot take legal authority as well-grounded and deserving obedience while allowing the perpetuation of historical inequalities to oppress us. It may not be acceptable to many to resist in order to redeem historical inequalities and injustice. Yet, if all the institutions created by the Constitution fail the people, the right to revolt should be available. Perhaps six decades is too short. But it is time we introspected on why partial justice is rendered by the system, why partial suspension of the rule of law occurs when minorities and Dalits are attacked, and why fundamental rights are routinely suspended for political dissenters.

NOTES & REFERENCES 1. Fletcher, George P. 1978. Rethinking Criminal Law, p. 224. Boston: Little Brown & Co. 2. On March 20, 1929, thirty one persons, including almost all important communist leaders and several trade unionists were arrested under Section 121A of the Indian Penal Code for conspiring to deprive the King of His sovereignty of British India. 320 witnesses were examined and 2500 exhibits filed before the Sessions Court, Meerut. Haithcox, John Patrick. 1971. Communism and Nationalism in India: MN Roy and Comintern Policy, 1920–39, p. 156–60. Bombay: Oxford University Press and Princeton, NJ: Princeton University Press. 3. Ghosh, Pramita. 1978. Meerut Conspiracy Case and the Left Wing in India (November), p. 162. Calcutta: Papyrus.

Conspiracies of Association 4. 5. 6. 7. 8. 9.

10.

11. 12. 13. 14.

15. 16. 17. 18. 19. 20.

21.

22.

23. 24. 25.

26. 27.

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Fletcher, George P. 1978. Rethinking Criminal Law, p. 225. Boston: Little Brown & Co. AIR 1940 PC 176. 1988 A. SC. 1961. Indian Appeals, LXXV 1947–48, 41 at 61. Seervai, H.M. 1991. Constitutional Law of India. Bombay: N.M. Tripathi Pvt. Ltd, pp. 1206–34. This kind of critical examination of decisions rendered by the judiciary is rare to come by from among legal scholars in India. Trial in the court of District and Sessions, Salem, Tamil Nadu, Sessions Case 10/2001. Date of Judgement 26 July 2001. Criminal Appeal 803, 863 and 871 of 2001 filed by accused in Madras High Court. Criminal Revision Case [285 of 2002] for enhancement of punishment and revision against acquittal on behalf of victims in Madras High Court dismissed and sentences of those convicted confirmed. Appeal of those convicted by High Court pending in the Supreme Court at the time of writing. Take, for instance, the massacre of Dalits in Padirikuppam (1983), Karamchedu (1985) and Chunduru (1991) in Andhra Pradesh among others, where Dalits were asserting the civil rights granted to them by Articles 17 and 15(2) and by the Protection of Civil Rights Act, 1955. Dworkin, Ronald. 1996. Taking Rights Seriously, p. 273. Delhi: Universal Book Traders. Criminal Appeal Nos. 803/2001, 863/2001 and 871/2001 in the High Court of Tamil Nadu. Anand, Javed. 1999. ‘Minority Rights in India: Constitution and the Reality’, in Sumanta Banerjee (ed.), Shrinking Space: Minority Rights in Asia, pp. 147–48. Lalitpur, Nepal: South Asia Forum for Human Rights, 1999. Nariman, Fali S. 1996. ‘Crime and Punishment’, Communalism Combat, January 1996, cf. Anand, Javed. 1999. ‘Minority Rights in India: Constitution and the Reality’, in Sumanta Banerjee (ed.), Shrinking Space: Minority Rights in Asia, p. 159. Lalitpur, Nepal: South Asia Forum for Human Rights, 1999. Damning Verdict, Justice Srikrishna Commission Report, 1998. The rise of Nazism and the targeting of Jewish people, who were a minority, led to the adoption of the Genocide Convention, which sets out the acts and deeds which come within the meaning of ‘genocide’. Constituent Assembly Debates (India), Vols. I–XII, 1946–50. Constituent Assembly Debates, Book 5, Vol. VIII, p. 272. Allen, Francis A. 1996. Habits of Legality, p. 9. New York: Oxford University Press. ‘Greco Bulgarian Community Case Advisory Opinion’, PCJI 1930, SER-B, No. 17, p. 21, cf. Bose, Tapan. 1999. ‘Foreword’, in Sumanta Banerjee (ed.), Shrinking Space: Minority Rights in South Asia, p. ix. Kathmandu: South Asia Forum for Human Rights. Capotori, Francesco. ‘Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities’, UN-Doc. E/CN/Sub. 2/384/Rev.1, p. 9, cf. Tapan Bose, ‘Foreword’ in Sumanta Banerjee (ed.). 1999. Shrinking Space: Minority Rights in Asia, p. x. Lalitpur, Nepal: South Asia Forum for Human Rights. Deschenes, J. ‘Draft Declaration on Minority Rights’, UN Sub Commission for Minority Rights, 1985, cf. Tapan Bose, ‘Foreword’ in Sumanta Banerjee (ed.). 1999. Shrinking Space: Minority Rights in Asia, pp. x–xi. Lalitpur, Nepal: South Asia Forum for Human Rights. Bose, Tapan. 1999. ‘Foreword’, in Sumanta Banerjee (ed.), Shrinking Space: Minority Rights in South Asia, pp. x–xi. Kathmandu: South Asia Forum for Human Rights. Pashukanis, Evgeny B. 1989. Law and Marxism: A General Theory [translated by Barbara Einhorn], p. 173. London: Pluto Press. CBI vs Chandrakant Shah and Ors, Sessions Case No. 233/92, The Court of the Second Additional Sessions Judge, Durg, Madhya Pradesh and State of Madhya Pradesh through CBI, etc. vs Paltan Mallah etc., Criminal Appeal No. 98 of 1999, Supreme Court of India. Based on the evidence of the Assistant Labour Commissioner in the trial of those accused of murdering Niyogi. This behaviour of Simplex towards conciliation is not unique. This is the standard behaviour of all managements. This stubbornness not to abide by the law by managements very often intimidates the working class into violence, and this violence is extrapolated from a chain of events of which strikes by employees is the consequence.

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28. These observations are based on evidence from the trial. There is cogent evidence of every aspect of Niyogi organising the workers, from the time he took on the issue of workers of the Simplex Group; the various prosecutions launched against and about his detention, and his externment by the government; the details of police interventions at the behest of the industrialists, in the course of his movement for living wages. There is also evidence of some confidential advice (Ex P261) as to how Niyogi should be handled, which was recovered from Moolchand’s (A5) residence. This action plan was very religiously followed. The events corroborate the advice. 29. For details of this case, State of Madhya Pradesh through C.B.I. etc. vs Paltan Mallah and others, 2005 (3) SCC 169. 30. Details of this case in State of Madhya Pradesh through C.B.I. etc. vs Paltan Mallah and others, 2005 (3) SCC 169. 31. State of Madhya Pradesh through CBI, etc. vs Paltan Mallah etc., Criminal Appeal No. 98 of 1999. 32. Russel on Crime, p. 1490. London: Stevens and Sons, 1964. 33. State of Madhya Pradesh through CBI, etc. vs Paltan Mallah etc., Criminal Appeal No. 98 of 1999. 34. Ibid. 35. Ibid. 36. AK Gopalan vs The State (1950) SCR 88; Makhan Singh vs State of Punjab 1964 AIR (SC) 381; Fagu Shaw vs West Bengal (1975) 3 SCR 365; ADM Jabalpur vs Shivakant Shukla 1976 (2) SCC 521; AK Roy vs Union of India 1982 AIR (SC) 710. For a more detailed account, see Kannabiran, K.G. 2003. ‘Personal Liberty Post Independence’, in Wages of Impunity. New Delhi: Orient Longman. 37. The facts that follow are taken from the judgement of the Additional Sessions judge, Vishakapatnam, in which about 75 accused were sentenced to various terms, from life sentence downwards. 38. Crossman, Richard (ed.). 1949. The God that Failed. New York: Columbia University Press. 39. Statement recorded before the Court of the Additional Sessions Judge, Vishakhaptnam, in the Parvathipuram Conspiracy Case. Complaint in the Court of J.F.C.M. Parvathipuram, PRC 8/70 filed by Sri S. Veeranarayan Reddy, Deputy Superintendent of Police, Crime Branch, CID, Hyderabad vs Chowdhry Tejeshwar Rao and 139 others. 40. Page 20 of the printed judgement of the trial court. 41. Manchester Guardian, December 9, 1929 cf. Ghosh, Pramita. 1978. Meerut Conspiracy Case, Calcutta: Papyrus. 42. P. Varavara Rao, Cherabanda Raju, Mohd Tajjudin Khan, K.G. Satyamurthy—known by his pen name Shivsagar— Ranganatham and few singers and other artists. In the telephone directory of that period, the Court was listed as Revolutionary Writers Court. 43. He was not qualified because he rose to the position of District Judge from Munsiff and therefore did not have the requisite practice as an advocate for appointment as Public Prosecutor. 44. T. Nagi Reddy a very erudite revolutionary leader. A member of the Andhra Pradesh Legislative Assembly, he resigned his seat to join the revolutionary movement in 1969. When he was in prison as an undertrial, towards the end he made a statement u/s313 of the CrPC running into 539 pages. In the High Court, I argued this matter for 40 days in the post lunch session along with my friend, C. Padmanabha Reddy. 45. Statement of Gandhiji before Judge Broomfield in 1922. Gauba, K.L. 1946. Famous and Historic Trials. Lahore: Lion Press.

17 Of Strong Medicine and Weak Stomachs: The Resort to Enhanced Punishment in Criminal Law in India Bikram Jeet Batra The pain which is caused by punishment is unmixed evil. It is by the terror which it inspires that it produced good…. Prolonged imprisonment may be more painful in the actual endurance; but it is not so much dreaded beforehand; nor does a sentence of imprisonment strike either the offender or the bystanders with so much horror as a sentence of exile…. It is natural that this fate should impress them with a deep feeling of terror. It is on this feeling that the efficacy of the punishment depends… Report of the Indian Law Commission on the Penal Code of 14 October 1837 discussing the sentence of transportation for life

INTRODUCTION—‘REFORM’ OF THE CRIMINAL JUSTICE SYSTEM Notions of crime and the nature and stated purpose of punishment provide valuable insight into the very nature of a State—reflecting its compulsions, challenges and concerns at a given time, while pointing towards the particular interests that the State seeks to serve. On the one hand, the present Indian CJS responds to sustained pressure from demands to keep ‘citizens’ safe from ‘terrorists’, ‘illegal’ migrants, Maoists–Naxalites and the other ‘others’; on the other, it often ignores the protection of its weakest constituents who remain trapped between recurring crime and unsympathetic policing. Other basic problems of excessive arrests, torture, delays and long periods of time spent in prison by undertrials and the lack of legal representation continue along

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with a clear absence of access to any vague notion of accountability and justice to a large share of the population. All this ensures that the problems of the present CJS disproportionately adversely affect the already marginalised in society.1 The extent of the dissatisfaction of communities with the failure of the CJS in protecting them is reflected by their lack of confidence in it. In extreme cases, this translates to vigilante actions such as the killing in August 2004 of Akku Yadav, a local criminal of Nagpur, inside court premises by a mob led by women of a local basti.2 Rather than recognise the root problems that lead to such extreme steps, these are, instead, co-opted by the Executive and the Judiciary to serve their own agendas, including making the case for the need of harsher punishment.3 Thus, while the report of the Committee to Reform the Criminal Justice System in March 2003 rightly identified a feeling of inadequate protection and people’s lack of confidence in the CJS, this was reduced to being caused merely due to delay and low rate of conviction.4 The Committee stated: It is common knowledge that the two major problems besieging the Criminal Justice System are huge pendency of criminal cases and the inordinate delay in disposal of criminal cases on the one hand and the very low rate of conviction in cases involving serious crimes on the other. As chances of convictions are remote, crime has become a profitable business. Life has become unsafe and people live in constant fear. Law and order situation has deteriorated and the citizens have lost confidence in the Criminal Justice System.5 The Malimath Committee’s diagnosis and focus on ‘low rate of convictions’ led to a large number of recommendations that sought to increase convictions by reducing the safeguards and rights accorded to the accused, even while ignoring the basic problems of arrest, torture, bail and undertrials.6 A similar approach to ‘reform’ has also been spelt out more clearly by a new committee appointed to draft a National Policy on Criminal Justice which asserts: The strategy is to give the police and the prosecution the tools to bring criminals to justice effectively and expeditiously. Respect for human rights and the dual system of law enforcement between the Centre and the States shall not be allowed to dilute the efficiency and effectiveness of the system.7 Such an assertion leaves little doubt as to where the national policy is headed. Given such perceptions and the resultant identification of areas of concern and crisis in the CJS, ‘reform’ invariably has meant a ‘hardening’ of the system. It is in such a context that any discussion on ‘reform’ of the CJS must be interrogated. This ‘hardening’ of the system is done in a number of ways—creation of new harsh and substantive laws to widen the ambit of punishable offences; making the availability of bail more difficult; whittling down rights and safeguards accorded to

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the accused in procedural law; creating special courts and/or procedures of trial; and providing for tougher and longer punishment.8 This essay examines the particular hardening of the CJS by its resort to harsher, enhanced and more stringent punishment as a key component of the ‘new and improved’ CJS.9 The CJS uses punishment, largely incarceration, for sane and mentally stable offenders. The reason for its use or the aim of this punishment cannot be explained by any single theory, and most sentencing policies are informed by interplay of the various theories of punishment, mainly deterrence and reformation. This essay focuses on the extent to which reformative and rehabilitative approaches have influenced punishment and sentencing in India. It attempts to locate the present ‘strong medicine’ approach within a deliberate (albeit de facto) rejection of, and a consistent shift away from, a previous punishment regime that was moving towards predominantly rehabilitative punishment.10 This change in direction midway (initially leaning towards deterrence and, in the recent past, arguably tilting towards retribution) is sought to be charted in this essay.11

PUNISHMENT AND SENTENCING IN EARLY CRIMINAL LAW The bulk of the CJS is formed by the substantive Indian Penal Code (IPC), the procedural Criminal Procedure Code (CrPC) and the Indian Evidence Act. Offences and their substantive punishment are provided for by the IPC, as per which the varied forms of punishment include the death sentence, imprisonment for life, rigorous (involving hard labour) or simple imprisonment for a fixed term, forfeiture of property and fines.12 The IPC is also supplemented by a number of special and local laws (SLL)—legislation varying from anti-terror laws to those protecting civil rights to those preventing cruelty to animals and so on. Punishment under such special law ranges from fines to mandatory capital punishment. While discussion on the nature of criminal law in colonial India is outside the ambit of this chapter, there is little doubt that the penal code and supplementary criminal legislation was founded on the notion that punishment should terrorise.13 That this continued in the early years of preindependent India is evident from the fact that till 1955, there was little formal amendment of the criminal laws or any known change in sentencing policy. The death sentence continued to remain the natural and preferred punishment for murder, and the sentencing judge had to record the reasons if he chose to award the alternative punishment of transportation for life. The alternative sentence was adapted, though—while those sentenced to transportation for life by the colonial regime were literally banished and sent away from mainland India, it appears that in independent India, most such prisoners were housed in regular prisons itself, even though, strictly speaking, the law did not provide for such imprisonment as there were no sentences of imprisonment in the penal code longer than 14 years.14

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The Amending Act 1955 The first significant amendment of criminal law in post-independent India was effected in 1956.15 While a large number of amendments took place, perhaps the most significant of these were the amendment of ‘transportation for life’ to mean ‘life imprisonment’ and allowing sentencing judges to choose the award of either the death sentence or life imprisonment for those convicted of murder.16 While reducing the death sentence from a prescribed punishment to an alternative punishment was certainly a step forward, ‘life imprisonment’ brought with it newer problems. The Joint Committee which moved the Criminal Procedure Code (Amendment) Bill 1954 had observed in its report, ‘The mere substitution of the expression “imprisonment for life” for transportation for life should not change the nature of punishment.’17 Thus, life sentence too was meant to be a lifelong banishment; only, now, rather than being sent to a far-off colony where they would be encouraged to settle down after their period of imprisonment, the convict would be locked inside a prison for life, albeit within India. This view of the Legislature had the support of the courts, which had clarified in various cases that life imprisonment meant imprisonment till end of life, unless released by the State.18 However, practice suggests that the Executive power of remission and commutation was being exercised liberally through the 1960s.19 This was also noted by the Law Commission which observed: It is of course true to say that a sentence of imprisonment for life is never carried out literally…. The actual period spent in jail by life sentence prisoners naturally varies a good deal and may be as short as 7 or 8 years.20 Given varied State legislation and practice, there was also no clear fixed period that a convict serving a life sentence may spend in prison. In Andhra Pradesh, for instance, it was estimated that an average lifer was released after seven years of actual sentence served.21 In Maharashtra, for all practical purposes, it was estimated at imprisonment for 12 years as per jail rules.22 In Rajasthan, lifers needed to serve an actual sentence of about nine years and three months and could be entitled to premature release if the total sentence including remissions exceeded 14 years.23 A Joint Committee of Parliament even noted, ‘Sometimes due to grant of remission even murderers sentenced or commuted to life imprisonment were released at the end of 5–6 years.’24 In terms of the death sentence, while Parliament had reduced the scope of its award, it rejected all attempts to abolish it. Bills tabled in 1956 and 1962 in the Lok Sabha, and in 1958 and 1961 in the Rajya Sabha, were all rejected.25 Under pressure from vocal and persistent abolitionists in Parliament, the government did, however, agree to seek the opinion of the Law Commission. The resultant report of the Law Commission, tabled in Parliament in November 1971, despite accepting


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that the opposition to the death penalty was based on consistent and sound research, concluded that due to the ‘conditions of India’, including ‘disparity in the level of morality and education’ and the ‘paramount need for maintaining law and order…India could not risk abolishing capital punishment’.26 The Law Commission’s report effectively ended any possibility of an early Legislative end to the death penalty and further formed the backbone of the Supreme Court’s judgement upholding the Constitutionality of the death sentence in 1972.27 Even though the death sentence could not be abolished, it was clearly losing favour with the Legislature, which sought to further reduce the scope of the award. This slow but consistent move away from the death penalty—from the ‘standard punishment’ pre-1955 position, the ‘neutrality’ after the 1955 amendment, to the eventual ‘exceptional punishment’ in the new CrPC in 1973 suggests that there was, to some extent, an understanding in the Legislature that harshness of punishment was not necessarily going to control murder, in particular, and crime, in general.28 The passing of the Probation of Offenders Act, 1958 also suggested that there was interest in studying non-incarceratory alternatives. The manner in which the Executive treated remissions and commutations throughout the 1960s too suggests that it was more or less in synch with the pulse of the Legislature.29 On its part, the role of the Judiciary was circumspect and conservative till the early 1970s. There was little discussion on any broader understanding of punishment in the judgements of the times.30 If anything, the approach of the Judiciary focused on being technically correct and playing by the rules.31 Even in the period between 1956 and 1974, when the Judiciary had wide powers on deciding punishment, there was little in the various judgements to indicate that there was any serious discussion on the theories of punishment or the Judiciary’s need to adapt to, or guide society, in general.32

The Code of Criminal Procedure, 1973 The new CrPC of 1973, which came into effect from 1 April 1974, made the death sentence an exceptional punishment and required that judges record ‘special reasons’ where they did not award life imprisonment.33 This was a clear statement from the Legislature that the death penalty was now to be an exceptional punishment while life imprisonment would be the obvious punishment for murder. That the ‘reform’ agenda appears to have the foremost reason for this change is also apparent given that the phrase ‘special reasons’ was also used in another new provision of probation was that brought in at the same time. Under Section 360 and 361 of the CrPC, the court was required to give the accused the advantage of probation unless there were special reasons, that is, unless the facts were ‘such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of

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the offender and the circumstances in which the offence was committed’. In a later judgement, the Supreme Court observed that given that both the provisions requiring ‘special reasons’ were brought at the same time in the new CrPC 1973, these were ‘part of the emerging picture of acceptance by the Legislature of the new trends in criminology’, and that it was being made clear by the Legislature that ‘reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country’.34 Furthermore, attempts to reduce the scope of the death penalty continued in the early 1970s as part of the broader amendments of the IPC and CrPC which emerged from recommendations of the Law Commission.35 The recommendation to limit the alternative punishment of death to a category of more heinous murders was made part of the Amendment Bill No. XLII of 1972. In 1976, the Joint Parliamentary Committee which studied this Bill also recommended limiting of the death penalty but further sought an amendment seeking 14 years actual imprisonment for persons sentenced to life imprisonment for a capital offence or where the death sentence imposed was commuted to life imprisonment. Pursuant to the recommendations made by this committee, the IPC (Amendment) Bill, 1978 and the Code of Criminal Procedure (Amendment) Bill, 1978 were introduced in Parliament. While the amendments to the CrPC became law with effect from 18 December 1978, the IPC amendments, though passed by the Rajya Sabha, lapsed as the Lok Sabha dissolved because of national elections. This resulted in a largely unintended situation—where the Legislature had effectively toughened the provision of life imprisonment, but no change was made to further limit the death sentence, even though it was clear from the report of the Joint Parliamentary Committee, as also from the subsequent Bills introduced, that the two were part of a broader amendment of criminal law in the country and indicated the mind of the Legislature and the Executive on issues of punishment and reform.36 The passing of the 14-year minimum imprisonment rule in Section 433A (with effect from 18 December 1978) was seen by many as a signal to the Executive from the Legislature that there was a need to tighten the stand on punishment in cases of grave and heinous crimes.37 Such a view was also supported by the Law Commission, which observed, ‘Owing to the increasingly generous application of the remission system in recent years to life sentence prisoners, the sentence has lost some of its deterrent effect and criminal are not frightened by the possibility of a sentence of imprisonment for life.’38 The Legislature also had support from the Judiciary. It was, in fact, a similar perception of ‘insufficiency’ of life imprisonment that had also influenced the Supreme Court in upholding the Constitutionality of the death sentence, observing: In the context of our Criminal Law which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty.39


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The uncertain political climate of the time also led to enhanced punishment in other legislation.40 Thus, the Prevention of Food Adulteration, 1954 was amended in 1976 as adulteration was seen to be a ‘grave menace to the health and well-being of the community’ making a ‘heavy dent in the already low nutritional standards and the benefits of many public health programmes on which large sums of public money are spent, are insidiously undermined’. The Legislature argued that a ‘major offensive against this evil is overdue’, and concluded that the need was not only to plug loopholes but also to ‘provide for more stringent and effective measures with a view to curb this menace’.41 The Protection of Civil Rights Act, 1955 was amended and renamed in 1976 for ‘plugging the loopholes and making the penal provisions more stringent’.42 There is little doubt that in terms of life imprisonment and capital punishment, the Legislature had made its intention very clear. The reduction in award of the death sentence was balanced by making ‘life imprisonment’ more stringent. The introduction of special legislation in the 1970s notwithstanding, the general approach appeared to be supportive of reformation and demanded more careful attention to sentencing that would lay emphasis on the criminal and not the crime alone. This is also evident in the introduction of Section 235(2) of the CrPC, 1973 that required a specific sentencing hearing after the conviction by the trial court in all cases, ‘in consonance with the modern trends in penology and sentencing procedures’.43

Lost in Translation—The Lack of Coherent Sentencing in the Courts The uncertain political climate in the 1970s ensured (or perhaps was reflected in) the lack of clarity and direction with respect to punishment and sentencing within the Judiciary. Though the new CrPC had made many ‘progressive’ changes, a number of these were lost in translation by questionable interpretation by the Judiciary, while others were used sparingly and even inconsistently. Yet, perhaps, it was the peculiarity of the period which led to a large number of judges subscribing to a reformist approach to punishment. While it would be optimistic to see the Supreme Court of the 1970s as following a reformist approach, there is little doubt that there were efforts at arriving at such a sentencing policy. These dithering and muddled attempts, informed by notions of reform and rehabilitation, are important to map, especially when contrasted with the completely opposite approach adopted by the Judiciary from the mid-1980s onwards. While the Court lamented the absence of modern correctional treatment in Shivaji vs State of Maharashtra,44 other benches of the Court used innovative approaches in sentencing to usher in the reform agenda that was a key component of the amended CrPC. In a landmark judgement in Ediga Anamma vs State of Andhra Pradesh, Justice Krishna Iyer used many unconventional methods to push the envelope and avoid awarding the death sentence, including making reference to the requirement of a post-conviction sentencing hearing in the amended CrPC, which was

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yet to come into force a month and a half later, the IPC (Amendment) Bill, 1972 and the move, internationally, towards reform-oriented sentencing policies.45 The Court stated: In the twilight of law in this area, we have been influenced by the seminal trends present in the current sociological thinking and penal strategy in regard to murder. We have also given thought to the legal changes wrought into the Penal Code in Free India. We confess to the impact made on us by legislative and judicial approaches made in other countries although we have warned ourselves against transplanting into our country concepts and experiences valid in the West.46 Although these views were of a minority in the Supreme Court, similar reference was also made in another judgement delivered by the same judges the very next day, where they added another innovation to avoid sentencing the accused to death—‘cumulative factor commutation’. The Supreme Court referred to a number of factors, including provocation, role of the accused, young age and delay on death row, noting: Perhaps, none of the above circumstances, taken singly and judged rigidly by the old draconian standards, would be sufficient to justify the imposition of the lesser penalty, not are these circumstances adequate enough to palliate the offence of murder. But in their totality, they tilt the judicial scales in favour of life rather than putting it out.47 Even in cases where the legal and factual position did not allow the judges to intervene in the conviction or sentencing, some judges stressed the importance of early release. In a corruption case where the Supreme Court refused to hear the appeal, it reiterated the importance of the ‘Penological innovation in the shape of parole…claimed to be a success in rehabilitation and checking recidivism’. The Court suggested that: …it is a matter for consideration of the prison authorities or others vested with the requisite power, whether the present petitioner should not be considered for parole after he has served a fair portion of his sentence…. All this depends upon his behaviour in jail showing that he has turned a new leaf.48 While such innovations were a departure from the conservatism of the court at the time, as also its past behaviour, it would be incorrect to relate this to a completely reformist or rehabilitative approach of either the institution or of the judge himself. Only a few months ago, Justice Krishna Iyer had sought deterrent ‘shock therapy’ against ‘anti-social piety’, which included sacrificial killings by devotees in the grip of superstition, observing, ‘When the disease is social, deterrence through courts sentence must, perforce, operate through the individual culprit coming up before court.’ The Judge noted, ‘Social justice has many facets and judges have a sensitive, secular


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and civilising role in suppressing grievous injustice to humanist values by inflicting condign punishment on dangerous deviants’.49 The absence of a clear sentencing policy and resultant inconsistency of the Supreme Court is also evident in the manner in which it dealt with the capital punishment for juveniles under the age of 18. In the absence of any national legislation, in some cases the Supreme Court commuted the sentence on the grounds of age.50 However, shortly thereafter in another case, even though the court did commute the sentence ‘[i]n view of the modern trends in penology and the observations in Harnam Singh’, another bench clarified that the commutation for persons under the age of 18 would not be a rule but age would merely an important factor to consider.51 The interpretation of law was also questionable. While initially the Supreme Court took a firm stand on the importance of the pre-sentencing hearing, and even remanded the case back to the trial court where it had not taken place, only a year later, in a number of cases, the Supreme Court observed that the lack of such a hearing was merely an irregularity, curable in the higher courts.52 Others have also observed a broader project on sentencing. In a discussion on a judgement of the Supreme Court in Mohammad Giasuddin vs State of A.P. (1977), a law professor argued that this period was the first attempt when the Supreme Court was distilling a rationale sentencing policy ‘out of crude mixture of the obsolete nineteenth century penal system and the twentieth century criminological theories’.53 In fact, while this judgement of the court was certainly welcome in that it suggested reparation and stressed the need for individualisation of punishment, it is debatable whether it was part of a broader project of rationalising of sentencing.54 In fact, given the various inconsistent messages from the Supreme Court, it is arguable whether the judgement of the Court in this case represented anything more than a personal view of the judges involved. The inconsistency is perhaps most starkly evident when the cases of Shaikh Abdul Azees vs State of Karnataka and Joseph Peter vs State of Goa, Daman and Diu (both in 1977) are contrasted. In the former, the court altered the case from Section 303, IPC (murder by a life convict which was punishable by a mandatory death sentence) to one of murder simpliciter and went further and commuted the sentence even though the accused was sentenced for a second murder.55 In the latter, the court refused to hear the appeal at all, rejecting the petition on the first hearing largely on the grounds that the perpetrator was ‘depraved’ and the crime ‘brutal’.56 To find a clear reformative thread in judicial pronouncements of the era would require an honest researcher to categorise too many judgements as aberrations.57 Yet, it is undisputable that there was much greater attention paid to sentencing and punishment in the Supreme Court of the 1970s as compared to the previous decades. However, personal views and positions of the judges had as much a role to play as the amendments of the CrPC by the Legislature. This is also illustrated by the discussion below of a series of judgements in 1979 that eventually forced a balancing act by a Constitutional bench of the Supreme Court to evolve the ‘rarest of the rare’ principle with respect to award of the death sentence.

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The deep schisms that existed in the court came to the forefront in the Supreme Court judgement in the landmark case of Rajendra Prasad vs State of Uttar Pradesh (1979), followed by Bishnu Deo Shaw vs State of West Bengal (1979) and Dalbir Singh and Others vs State of Punjab (1979).58 While all the cases were different on facts, a key factor that bound these judgements together was the interpretation of ‘special reasons’ as required to impose the death penalty as relating to the criminal and not the crime itself. Thus, in the judgement in the Rajendra Prasad case, the majority of Justices Krishna Iyer and Desai noted: ‘Special reasons’ necessary for imposing death penalty must relate, not to the crime but to the criminal. The crime may be shocking but the criminal may not deserve the death penalty. The crime may be less shocking than other murders and yet the callous criminal e.g. a lethal economic offender, may be jeopardizing societal existence by his act of murder.59 Similarly, in Bishnu Deo Shaw, the bench of O. Chinnappa Reddy and Krishna Iyer stated: Special reasons, we may therefore say, are reasons which are special with reference to the offender, with reference to constitutional and legislative directives and with reference to the times, that is, with reference to contemporary ideas in the fields of criminology and connected sciences. Special reasons are those which lead inevitably to the conclusion that the offender is beyond redemption, having due regard to his personality and proclivity, to the legislative policy of reformation of the offender and to the advances made in the methods of treatment etc.60 In Dalbir Singh, again, the majority bench of Iyer and Desai rode on the precedence of the previous two cases and commuted the death sentences.61 The split between the majority judges and Justice A.P. Sen’s minority judgement is sharp. Justice Sen noted that such definition of ‘special reason’ in Section 354(3) virtually abolished the death sentence and he could not support such a reading, given the clear message of retention of the punishment by the Legislature.62 However, Justice Sen’s minority opinion also revealed the deep personal differences between him and Justice Krishna Iyer on the subject: the barbs were only mildly veiled when Justice Sen suggested that the forum for abolition was elsewhere and not the Supreme Court. The issue was, therefore, one of interpretation of law or facts alone.63 That the divide was not one only between these individual judges is also clear, given that the same day that the judgement of the Supreme Court bench of Justices Iyer and Desai in the case of Dalbir Singh was delivered, another bench of Justices Kailasam and Sarkaria decided to refer another matter of one Bachan Singh to the Chief Justice for hearing by a larger bench, citing their inability to follow the Rajendra Prasad judgement as it was not in conformity with the Supreme Court’s previously upholding the death sentence.64 The personal animosity between the Supreme Court


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judges is evident in the sarcastic statement of one of the judges that he was embarrassed by having to follow the ‘long and learned essay’ of Justice Krishna Iyer.65 The landmark judgement of the constitutional bench of the Supreme Court in the case of Bachan Singh vs State of Punjab in 1980 was a result of this division.66 While the Supreme Court upheld the Constitutionality of the death penalty, it did, however, clarify the exception of the death penalty by propounding the ‘rarest of the rare’ formula. Drawing upon particular clauses of the IPC (Amendment) Bill, 1978 that had never been passed, the Supreme Court illustrated ‘aggravating circumstances’ and ‘mitigating circumstances’ required to be kept in mind during sentencing in capital cases. Furthermore, while it rejected the approach that ‘special reasons’ could only be related to the criminal, the Bench noted that the potential and possibility of the accused being reformed and rehabilitated would be presumed unless the State proved the opposite with evidence. The court also clarified that judgements that did not recognise post-murder remorse, penitence or repentance by the murderer as relevant factors were opposed to the ‘the current penological trends and the sentencing policy outlined in Section 235(2) and 354(3)’.67 The amendments of the CrPC and the various judgements of the Supreme Court in capital cases discussed above leave little doubt of the absence of a clear sentencing policy, as also of the differences that remained among the judges in the court. Other factors, too, played a role: some observers have argued the activism of the Supreme Court and a number of progressive rulings on prisons conditions, rights of prisoners, undertrials and rehabilitation in the late-1970s cannot be detached from the role of the court upholding the suspension of fundamental rights during the emergency.68 While, by the start of the 1980s, the Supreme Court did propound the ‘rarest of the rare’ formula to further reduce death sentences and ostensibly complete what the Legislature had sought to do vide the IPC Amendment Bill, 1972, in many ways the rocky path to the ‘rarest of rare’ formulation represents the broader inconsistent, divergent and even confused manner in which the court dealt with questions of punishment, in general, through the 1970s.

ONE STEP FORWARD, MANY STEPS BACK: PUNISHMENT AND SENTENCING POST-1980 The immediate impact of the Supreme Court judgement restricting the death sentence to the ‘rarest of the rare’ cases was noticeable in the early 1980s, with a large number of death sentences being commuted in the Supreme Court.69 In fact, even judges supportive of the death penalty observed the impact and the dictates of the ruling.70 However, as the ensuing discussion in this section suggests, the positive impact was soon lost amidst a large number of legislation in the late-1980s which allowed for the death sentence to be awarded (even making it mandatory in a

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few cases), as also a backlash by retentionist judges who sought to justify the award of the death penalty on the ground of society’s cry for ‘justice’. Such a trend has continued well into the 1990s, with more statutes/provisions providing for the death sentence and the courts, too, awarding the death sentence in a large number of cases. Thus, the formulation of the ‘rarest of the rare’ has been reduced to a mere nominal mention of the phrase, while the sentiment, logic and object of the formulation are oft ignored. The early 1980s saw a tussle between judges in the Supreme Court on sentencing and punishment. The dominant reform and rehabilitation agenda of the Court was reiterated in Mithu vs State of Punjab (1983) where the Supreme Court struck down the mandatory death sentence for a life convict who had committed murder.71 However, the golden period did not last—the retentionists in the Supreme Court managed to win back some ground with a judgement which, while ostensibly clarifying the ‘rarest of the rare’ formulation, listed a number of situations when death sentence was to be awarded, and further reasserted the importance of retributive killing when the collective conscience of the community was shocked.72 The tussle between the abolitionists and the retentionists was also obvious in another case where a challenge to the Constitutionality of the 14-year minimum imprisonment for persons sentenced to life imprisonment (Section 433A, CrPC) also led the court to examine the various objects of punishment.73 In Maru Ram and Ors vs Union of India and Ors, while the entire five-judge bench unanimously upheld the provision of 14-years minimum imprisonment, the majority did so with reservations about its very need and fear of its impact, even noting that no material had been discussed in Parliament or anywhere else as to the need or efficacy of such a provision.74 The majority expressed its concern at an extreme position by the Legislature, stating: ‘If we had our druthers we would have negatived the need for a fourteen-year gestation for reformation.’ The court argued, ‘Beyond an optimum point of say, eight years—we mean no fixed formula—prison detention benumbs and makes nervous wreck or unmitigated brute of a prisoner.’ Further keen to reassert the reformative agenda as primary, even alongside the new provision, the court ‘heart-warmingly observe[d] experiments in open jails, filled by lifers, liberal paroles and probations generosity of juvenile justice and (sic) release or freedom under leash’. The majority judgement, therefore, stressed on the continual use of probation and paroles, recommending ‘until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking…the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed’.75 It was this very primacy accorded to reform by the majority that disturbed the other judges. In his minority opinion, Justice A.D. Koshal stated, ‘The four main objects which punishment of an offender by the State is intended to achieve are deterrence, prevention, retribution and reformation is well recognized and does not appear to be open to dissent.’ He further argued that given the absence of evidence that all or most of the criminals punished are amenable to reformation and that the object of punishment is a legislative function and not a judicial one, the Supreme Court


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could not accord primacy to reformation over the other objects of punishment. The judge also noted that as the IPC awarded higher punishments for more serious offences, it was clear that the foremost object sought to be achieved by the penal provisions adopted by the Legislature was not reformation. Justice Fazal Ali stated that he was not against reformative form of punishment on principle, but that the need of the hour was deterrence.76

Enhanced Punishment in New Statutes If, as Justice Koshal had argued, the determination of the object of punishment was a legislative function, it was clear that punishment in the 1980s was headed towards deterrence and retribution rather than reformation. In fact, not only were life sentences being made longer, but the Legislature also enacted a large number of laws with enhanced punishment, including the death penalty. No small part in this trend was played by the emergence of ‘terrorism’ as the dominant threat of the time. In fact, the first expansion of the death sentence also came by way of the mandatory death penalty for terrorist offences in the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter TADA 1985). TADA 1985, brought in to combat the growing Khalistani movement in Punjab, replaced the Terrorist Affected Areas (Special Courts) Act, 1984 and was initially applicable only for a period of two years in Punjab alone. While TADA 1985—dangerously—gave way to a national TADA 1987, the Legislature took away the mandatory death penalty, replacing it with the death sentence as an alternative punishment. Even after TADA’s eventual expiry in 1995, the subsequent Prevention of Terrorism Act, 2001 (POTA) and the latest anti-terror legislation, the amended Unlawful Activities Prevention Act, 2004 (UAPA) continued with an alternative death sentence.77 The death sentence was also provided as an alternative punishment by the Legislature in the Commission of Sati (Prevention) Act enacted in 1987, as it observed that the CrPC ‘has not proved effective for prevention of sati and its glorification’.78 Yet, despite avoiding the mandatory death sentence in TADA and the sati prevention law, they were again provided for in the Arms Act, 1959 and the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The Arms Act was amended in 1988 to provide a mandatory death sentence for any person who used prohibited arms resulting in the death of another person.79 The NDPS Act was amended in 1989 to include a mandatory death sentence for specific second convictions as per the recommendations made by a Cabinet sub-committee to strengthen the existing law by increasing punishment.80 Again, in the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, passed in 1989, a mandatory death penalty was prescribed for fabrication of evidence.81 Here again, the Legislature argued that this legislation was required to strengthen the ‘inadequate’ Protection of Civil Rights Act and IPC and stringent measures needed to be ‘introduced for higher punishments for committing such atrocities’.

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The scope of award of the death sentence was also increased (albeit as an alternative sentence) in the IPC by an amendment in 1993 for the offence of ‘kidnapping for ransom’.82 Furthermore, while the death penalty was already in place in military law (Army Act, Navy Act, etc.), it was also brought in when other ‘armed forces’ were raised vide the National Security Guard Act, 1986; the Indo-Tibetan Border Police Act, 1992 and the recent Assam Rifles Act, 2006. The tendency to resort to the death penalty as a magic wand peaked with the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government making repeated calls for the death penalty. In 1998, despite opposition from many in the women’s movement and the human rights movement, Home Minister L.K. Advani called for the death penalty to be awarded to convicted rapists.83 Around the same time, the Cabinet also announced its decision to amend provisions of the Explosives Act to provide for death penalty for those convicted of carrying certain explosives, including RDX and PETN, ‘in view of the growing smuggling of such substances in terrorist infested areas’.84 While neither of the above proposals was eventually cleared by Parliament, the death sentence was also sought to be imposed for manufacturers of spurious drugs,85 as also to be extended in the Sati (Amendment) Bill 2006.86 Besides increasing the scope of award of the death penalty, these decades also saw a number of new legislations with other draconian punishments. Thus, for instance, the Anti-Hijacking Act, 1982, enacted in pursuance of India’s obligations under the Convention for Suppression of Unlawful Seizure of Aircrafts (Montreal Convention), provided a mandatory sentence of life imprisonment for those found guilty of hijacking. Similarly, the Arms Act, 1959 was amended in 1983 to inter alia bring in more stringent punishment to counter ‘increasing incidence of crime involving use of firearms’. In 1985, the legislation was further amended as according to the Legislature, ‘The punishments provided for at present do not have a strong deterred effect. There is, therefore, an increased need to provide for more stringent punishment…’ That these constant increases in punishment had no particular effect was clear when, in 1988, a third amendment was passed to further provide more stringent punishments for use of lethal weapons and ammunition and to include a specific reference to double punishment being provided in case of a second conviction under the Act. The NDPS Act was amended in 1989 to provide that that no sentence of imprisonment awarded under the act would be suspended, remitted or commuted (Section 32A). The retributive impact of such a provision becomes obvious from the fact that the Act also prescribed a penalty of between 10 and 20 years imprisonment for possession of various drugs. Like the Arms Act, the NDPS Act also provides for additional punishment for subsequent punishment (Section 31), and for such a purpose specifically deems conviction by a competent court outside India as a conviction under the Act. Even though the legislation was rationalised and restructured in 2001 to distinguish between possession of small and commercial quantities, the NDPS Act remains one of the harshest laws in the books today. The courts have also upheld the bar on the government, effectively reducing any of the sentences awarded.87


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A number of other harsh punishments were also brought into other legislation that ostensibly tackled ‘social offences’. The success of the women’s movement in forcing the 1983 IPC Amendment into recognising marital cruelty and dowry deaths was followed by the amendment of the Dowry Prohibition Act, 1961, including an increase in the minimum punishment for taking or abetting taking of dowry to five years and a fine of Rs 15,000.88 Similarly, ‘Suggestions […] made to Government by voluntary organisations working with women, advocacy groups and various individuals urging the enlargement of the scope of the act, to make penal provisions more stringent…’ led to an amendment in 1986 vide which the Suppression of Immoral Traffic in Woman and Girls Act, 1956 became the Immoral Traffic (Prevention) Act, 1956 with more stringent punishment. Women’s rights were not the only area of the State’s interventions. Besides bringing in the mandatory death penalty, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also provided various other mandatory punishments, as did Section 5, which provides enhanced punishment for subsequent convictions. These, and a number of other legislation and amendments, were enacted and amended by Parliament, largely, if not entirely, for symbolic purposes. At worst, this was done to show that something was being done in response to such ‘social crime’; at best, it was a reflection of the outrage of particular sections of society and the success of their campaigns. A hallmark of such ‘welfare’ criminal legislation was the looseness of the procedures and the harshness of the punishment. Enhanced punishment, including increased scope of award of the death penalty, was one of the clear markers of the post-1980s legislation in criminal law. Not only did such punishment in the statute books mock at the ‘rarest of the rare’ formulation of the Supreme Court, it also reversed the reformist approach to punishment that the amended CrPC had adopted in 1973. The possible impact of such a move by the Legislature on the Court is discussed next.

Responding to ‘Society’s Cry for Justice’ and the ‘Mockery of Justice’ If the actions of Parliament were meant to be a signal to the Judiciary, they were effective, and a similar approach was taken by the majority in the Supreme Court. Despite a few rare and farbetween, albeit well-known, pronouncements in the past two decades, the Supreme Court has consistently read out the riot act to those found guilty. The impact of the series of path-breaking progressive judgements in the late-1970s–early 1980s virtually disappeared, especially in capital cases in which the courts limited their adherence of the ‘rarest of the rare’ formulation to lip service alone. The resurgent majority of ‘hardliners’ in the Judiciary had, therefore, not only assured the permanence of the death sentence but now also clearly supported the ‘strong medicine’ approach of the Legislature.

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One outlet of the outrage of the courts was the rare dowry-death cases that ended in convictions. In the case of Virbhan Singh and Anr vs State of Uttar Pradesh (1983), the Supreme Court noted the ‘unfortunate and disturbing phenomenon’ of increasing bride killings and observed, ‘If society should be ridden of this growing evil, it is imperative that whenever dastardly crimes of this nature are detected and the offence brought home to the accused, the courts must deal with the offender most ruthlessly and impose deterrent punishment’.89 This sentiment was repeated even more firmly in another case which the court observed was ‘yet another unfortunate instance of gruesome murder of a young wife by the barbaric process of pouring kerosene oil over the body and setting her on fire’. The court stated: Whenever such cases come before the Court and the offence is brought home to the accused beyond reasonable doubt, it is the duty of the Court to deal with it in most severe and strict manner and award the maximum penalty prescribed by the law in order that it may operate as a deterrent to other persons from committing such anti-social crimes.90 That this trend was not limited to the Supreme Court is clear from the many judgements where the apex court had, in fact, to redress the damage done by High Courts that got carried away with the rhetoric of retribution. In a case from Rajasthan, the Supreme Court noted that the High Court had been influenced more by ‘general conditions of the social order’ and the whole horror of dowry deaths rather than the evidence in enhancing the life term awarded by the Sessions Court.91 Similarly, in another infamous case, the Supreme Court commuted the death sentence to a life term noting that the direct role was not established and the High Court appeared to be affected more by anger than by reasons. The Supreme Court concluded ‘judicial discretion should not be allowed to be swayed by emotions and indignation’.92 Also, State vs Laxman Kumar (1985)93 is perhaps a telling example of the manner in which the public debate of the time affected the courts. Despite the trial court sentencing three persons to death for a dowry death, the High Court acquitted them all. Along with an appeal by the State, another appeal was also filed by the Indian Federation of Women Lawyers. While overturning the acquittal, the Supreme Court also noted that the High Court judgement had a ‘conclusion’ where they noted that their acquittal verdict was likely to ‘cause flutter in the public mind more particularly among women’s social bodies and organisations’. The Supreme Court was ‘disturbed that the High Court took notice of publicity through the news media and indicated its apprehension of flutter in the public mind.’ The court also noted that the High Court appeared to have been very worried about the impact of the judgement and went out of its way to be defensive. The apex court cracked down on this approach, adding, ‘Debate has no place in a judgement.’94 The court’s hardline stance was not limited to dowry deaths alone. In a case where murders took place on caste lines, the High Court had observed that in such group murders caused by


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persons who believed in ‘untouchability as their way of life’, the severest punishment was deserved to express condemnation. The High Court further noted: In such shocking nature of crime as the one before us which is so cruel, barbaric and revolting, it is necessary to impose such maximum punishment under the law as a measure of social necessity which work as a deterrent to other potential offenders. The Supreme Court shared these concerns of the High Court and added: We also feel that it will be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon. While the court added a disclaimer that in doing so, they did not ignore the need for a reformative approach in the sentencing process, this appears to be more a balancing assertion than a real belief of the court.95 Observing in one judgement that the Legislature allowed it to award the extreme punishment of death ‘to deter others and to protect the society and in a given case the country’, the Supreme Court reiterated the necessity to award exemplary punishments to protect the community and to deter others from committing such crimes like acid pouring or bride burning.96 In the same judgement, even though the court stressed the need for a high degree of concern and sensitiveness in sentencing, it also conceded that ‘offenders of some particularly grossly brutal crimes which send tremors in the community have to be firmly dealt with to protect the community from the perpetrators of such crimes’. A similar line was adopted in Sevaka Perumal vs State of Tamil Nadu (1991), where the court cited the previous judgements and reiterated the duty of the court, stating that: …undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine to public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence….97 The sentiment of the court has been similar in cases involving violent crime against children. Shocked by the callous attitude of the High Court in the case of the rape of a minor and by the ‘alarming and shocking increase of sexual offences committed on children’, the Supreme Court stated that ‘such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms’ and concluded, ‘We feel that Judges who bear the Sword of Justice

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should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand.’98 A similar sentiment is also visible in another case where the court, outraged at an incident of rape of a minor girl by her father, enhanced the sentence from five years rigorous imprisonment to imprisonment for life and the fine from Rs 1,000 to Rs 25,000. However, the judgement of the court made clear that it emerged, in fact, more from the disgust of the particular Bench with incestuous rape rather than from any ‘outcry’ of society.99 This chivalrous attitude, as also the court’s perceived sense of duty to protect society, are visible most clearly in the case of Dhananjoy Chatterjee vs State of West Bengal (1994), where the court prefaced the discussion on sentencing with the observation, ‘In recent years, the rising crime rate—particularly violent crime against women has made the criminal sentencing by the courts a subject of concern.’100 The court further stated, ‘Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime’. Upholding the death sentence to the accused—a housing complex security guard who had committed rape and murder of a schoolgirl living in the same building, the Court lamented, ‘If the security guards behave in this manner, who will guard the guards? The faith of the society by such a barbaric act of the guard gets totally shaken and its cry for justice becomes loud and clear.’101 While the Apex Court made reference to all the relevant law and language of ‘rarest of rare’, the judgement suggests that it was only a mirror for the outrage of society. A similar sentiment is also visible in Ravji vs State of Rajasthan (1996), where it observed: ‘The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong.’102 In State of Madhya Pradesh vs Ghanshyam Singh, after discussing the need for law to protect society and quoting many of the above judgements on ‘mockery of justice’ and undue sympathy to be avoided, as also the importance of proportionality and the various factors the judge must consider, the court noted: Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing merger sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence in built in the sentencing system.103


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In another case where the court did not directly deal with violent crime, it dismissed, all the same, all illusions and pretences of reform being relevant, asserting: The purpose of criminal justice is to award punishment. It is a method of protecting society by reducing the occurrence of criminal behaviour. It also acts as a deterrent. Where the punishment is disabling or preventive, its aim is to prevent a repetition of the offence by rendering the offender incapable of its commission.104 Subsequently, in a number of cases in the past few years, particular judges of the Supreme Court have shown a clear inclination to follow the ‘get tough’ approach. In one particular case, the court rejected the reduction in the sentence by the High Court on the ground that the accused was an illiterate labourer aged about 20 years at the time of the commission of the offence.105 In another, the Supreme Court rejected the High Court awarding a sentence lesser than the minimum sentence on the special reason that the accused belonged to a rural area.106 In a third, the reason for lower sentence given by the High Court—that the accused belonged to a Scheduled Tribe—was rejected by the Supreme Court.107 While there is little dispute with the court on the conclusions arrived at on the facts and the law in these cases, it is the manner and vehemence with which the court has approached these cases that is striking and raises concern. Not only are all the judgements similar in style and content, derived as they are from the ‘mockery of law’ series of cases discussed above, they all rely strongly on a staunchly retributive object of punishment. This recent resurgent ‘get tough’ approach is not limited to gender violence cases alone. In an NDPS case, the Supreme Court chastised the High Court for reducing a 10-year sentence to over six years, which had already been undergone, claiming: An offence relating to narcotic drugs or psychotropic substances is more heinous than a culpable homicide because the latter affects only an individual while the former affects and leaves its deleterious impact on the society, besides shattering the economy of the nation as well. The court also relied upon the legislative intent and the provision of harsh penalties in the statute to support its judgement. Rejecting the High Court’s favourable consideration of the age of father of the accused, reported family problems and the accused being a first-time offender, the Supreme Court stated, ‘Such considerations are really meaningless when one considers the fact that the accused was in possession of contrabands which would have destroyed the health and mental equilibrium of thousands of people.’ It reversed the High Court judgement.108 Similarly, in a case involving the sacrifice of a child in a religious ceremony, the Supreme Court awarded the death sentence reiterating the importance of ‘just dessert’ as the basis of punishment. Perhaps most strikingly, the court completely dismissed any possibility of reformation, observing that ‘the appellant was not possessed of the basic humanness and he completely lacks the psyche or mindset

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which can be amenable for any reformation’.109 This demonisation is also visible in a number of other cases where accused-appellants were objectified and villainised by the court, which found them not fit to live.110 A study of a clear move towards harsh punishment cannot ignore the impact of ‘terrorism’ on the judicial pronouncements of the past decade. There have been a number of high-profile cases where the courts have resorted to the extreme punishment and justified the same by the need to protect society from the ‘terrorists’—whether Tamil, Khalistani, Maoists, Pakistani or Kashmiri. In all such cases, there is little doubt that the court is more influenced by the dangers of ‘terrorism’ than concerned with other issues of evidence and guilt. Thus, in the case of Devinder Pal Singh vs State (National Capital Territory of Delhi) and Anr (2002), the Supreme Court was pleased to ignore blatant irregularities in investigation and confession as also claims of torture, noting instead: The ‘terrorists’ who are sometimes described as ‘death merchants’ have no respect for human life. Innocent persons lose their lives because of mindless killing by them. Any compassion for such persons would frustrate the purpose of enactment of TADA, and would amount to misplace and unwarranted sympathy. In fact, the following excerpt from the judgement illustrates the context considered by the court in awarding the death sentence: Menace of terrorism is not restricted to our country, and it has become a matter of international concern and the attacks on the World Trade Centre and other places on 11 September 2001 amply show it. Attack on the Parliament on 13 December 2001 shows how grim the situation is.111 Shortly thereafter, in another case, the Supreme Court observed: Terrorists have no religion, no concept of communal or social harmony and value for human life.… The temple of democracy in the country—the Parliament—did not also escape the wrath of such people…. The millions of peace loving citizens in the country are threatened to be put on a ransom by a group of people.112 In another TADA case, the Supreme Court even enhanced the sentence from life imprisonment to death for members of the notorious Veerappan gang, noting, ‘The appellants are threat and grave danger to society at large…. It would be mockery of justice if extreme punishment is not imposed. Weighed down by the pressure from such ‘terrorism’, the court concluded, ‘We have to perform this onerous duty for self-preservation i.e. preservation of persons who are living and working in the area where appellants and their group operate.’113 The decisions of the various courts in the Parliament Attack Case, as also of the Trial Court in the Red Fort Attack Case, appear sufficiently weighed down by the ‘menace of terrorism’ to


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leave ‘little option’ to the judges but to resort to harsh punishment ‘to deter others’ and satisfy the ‘cries of justice from society’.114 Perhaps the best example of such a case was the judgement in the Rajiv Gandhi Assassination Case where the designated TADA Court sentenced all 26 convicted persons to death in order to send a strong message to others involved in such activities. The judgement has been referred by some as akin to a chargesheet while others referred to it as a ‘judicial massacre’. Even though the Supreme Court commuted the sentences in most of the cases; yet, the underlying message of deterrence was present in the death sentences upheld in all the three judgements.115 Both Justices S.S.M. Quadri and D.P. Wadhwa referred to the ‘mockery of justice’ and the ‘society’s cry for justice’ in their individual judgements. In the series of cases discussed earlier, various judges of the Supreme Court have relied on an abstract societal ‘cry for justice’ as well as the claim that the award of anything less than maximum punishment would lead to a mockery of justice. The approach of the court is, perhaps, best illustrated by its comment in a judgement in a murder case: ‘No doubt in penology the trend from punitive to therapeutic attitude is rightly on the increase, but the scope of the latter is limited in such a crime, and the punitive philosophy and social alarm is difficult to be neglected or abandoned.’116 While accepting the need for a reformative approach in principle, the court always finds peculiar circumstances for relying instead on retribution or deterrence. This is in addition to the cases where the court has completely rejected any understanding of reform from informing the sentencing process. In a number of cases where it has discussed reform, the approach of the Supreme Court has been cynical and dismissive.117 Even in a number of cases where persons have surrendered to the police after committing serious crimes or have confessed in court, the court has been wary of reading such action as remorse or suggesting a potential to reform.118 This is in sharp contrast to previous cases where the courts had given primacy to reform, even going so far as requiring proof from the State that the accused was beyond reform as a precondition to awarding the death sentence.119 Some of the differences can be explained by individual positions and views of judges. These, however, become crucial in capital cases where such inconsistencies are glaring. Thus, while in one case the Supreme Court did not award the death sentence as the appellant-accused was a young man of 20 and a student at the time of the incident,120 in others it has found accused over 18 and sentenced them to death, despite evidence that the accused were, in fact, juveniles and could not, therefore, be sentenced to death.121 Such inconsistencies also completely dismiss the court’s selfprojection as being necessarily severe but intrinsically fair.

Compensation and Restitution Along with a strong retributive approach in the recent past, the development of a restitutive approach in the Supreme Court also deserves attention, especially since provisions for compensation

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that existed in the CrPC were sparingly used in the past.122 The need for more detailed provisions of compensation also have been referred by a number of Law Commission reports but these have not received the attention of the government.123 In fact, the provisions of fine and compensation in the CrPC becomes further important given that the right of a victim to restitution has not yet received statutory recognition in India.124 In early cases where fine was directed to be paid as compensation, it was largely done by the High Court which also commuted the death sentence that had been awarded by the Trial Court. On its part, the Supreme Court initially took a cautious and even conservative stand. In the number of cases where the High Court commuted the death sentence and fined the accused as compensation to the family of the victim, the Supreme Court reduced the amount and noted that even though the High Court did have such power, restraint needed to be exercised, all the same.125 In another case, the Supreme Court raised doubts about imposing fines on accused where there was little capacity to pay as default sentence for non-payment of fine would not achieve.126 Yet, in other cases, the court itself awarded compensation to relatives of the deceased, payable from a fine placed on the accused after commutation of the death sentence.127 The above cases were precursors towards a later broader move towards restorative justice seen in the court. In 1988, the Supreme Court called upon all the courts to liberalise their power and award compensation to victims ‘to reassure the victim that he/she was not forgotten in the criminal justice system.’128 In this case, where the victim’s power of speech was impaired permanently, the Supreme Court enhanced the fine payable as compensation from Rs 2,500 to Rs 50,000. In another case, where the courts were unable to pin a murder conviction, the Supreme Court added fine of Rs 10,000 on each of the respondents, to be payable as compensation.129 Unfortunately, inconsistency in the amount of compensation awarded has also been witnessed. In a number of cases involving the death sentence, the court has been conservative, with sums awarded as compensation ranging from Rs 10–15,000.130 Yet, in other cases, compensation has been in lakhs.131 In a recent case of one Swami Premananda, who raped 12 minor girls in his ashram and also murdered one disciple, the Supreme Court upheld a total fine on the main accused of Rs 61,30,000 from which Rs 5 lakh each was given as compensation to the 12 victims of the accused.132 In all the above cases, compensation was added to already significant punishment, whether life imprisonment or other terms. However, in Dr Jacob George vs State of Kerala (1994), the appellant, even though sentenced for four years rigorous imprisonment for causing the death of a woman while attempting a miscarriage, was released by the Supreme Court after only two months and a fine enhanced from Rs 5,000 to Rs 1 lakh. Although the court argued that: …the reformative aspect of punishment has achieved its purpose…keeping the appellant inside the prison boundaries for about two months having enabled him to know during this


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period the trauma which one suffers in jail, and so the appellant is expected to take care to see that in future he does not indulge in such an act which would find him in prison.…, it is difficult to assert that the social standing and class of the accused played no role in this case.133 Similarly, in a case where policemen were on trial for a custodial death, even though the court presented a long discourse on the problems and ills of custodial torture, it eventually released the main accused after a two-year term and the other accused after only one year, with composite compensation of over Rs 1 lakh.134 Such inconsistency both in awarding compensation and in the amounts have led to increased debate on the improvement of the current model of restorative and reparative punishment. In a landmark case which discussed prisoners’ rights, the Supreme Court also addressed this question, arguing that it was time to move away from punishment of the offender alone towards restoring the harm done. The court further noted that despite the efforts of the court, restorative and reparative theories practised through the imposition of fines had not translated into real benefits to the victims, as most convicts sentenced to long-term imprisonment did not pay the compensation. The court pointed out that it was only when fine alone was the sentence that the convicts paid up, making compensation available only in the less serious cases. The Supreme Court, therefore, recommended that legislation be passed mandating the setting apart of a portion of the wages earned by the prisoners for work done in prison to be paid as compensation to deserving victims of offences.135 Even the otherwise draconian Malimath Committee report recognised the difficulties of the present system—which acted disproportionately against those genuinely incapable of paying—and recommended community service as the alternative, as opposed to default sentences presently awarded. With importance placed on the rights of victims, the recent restitutive approach adopted by the Supreme Court could provide a useful way forward, particularly when contrasted with the retributive approach that receives most attention despite doing little besides paying lip service to the rights of the victims.

REMISSION AND THE ROLE OF THE EXECUTIVE Another aspect particularly relevant for any study on punishment is that of premature release. Even though a life-term awarded in India is for the entire lifespan of the convicted, practice has been for the Executive to remit the sentence after completion of a particular period in prison. Given that imprisonment is the main punishment for most crimes in India, and that persons serving life

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sentences form the vast majority of convicts in our prisons, the question of Executive remission becomes vital in ensuring that punishment serves its purpose and its objectives—stated or otherwise.136 In the recent past, there has been an attempt in the Supreme Court to limit the powers of remission of the Executive by stating in its judgements that the person/s convicted should serve 20 years in prison or be imprisoned for the entire life without being allowed remission. Not only does such action raise concern, it is, in fact, arguably violative of the separation of the powers principle as it amounts to the Judiciary restricting the statutory right of remission of the Executive. The powers of remission and commutation are available to the Executive under particular provisions of the IPC and the CrPC. As per these provisions, the Executive (‘appropriate government’) has the power to commute a sentence of life imprisonment to simple or rigorous imprisonment up to 14 years or even a fine.137 These powers, however, are subject to the provisions of Section 433A, CrPC.138 The remission powers of the Executive have historically been controversial. The very passing of Section 433A by the Legislature, placing restrictions on the Executive’s powers of remission, emerged from a perception that these powers were being used very liberally. Their liberal use on partisan party lines and other similar loyalties has been well documented.139 Conversely, instances where the Executive has wrongly refused to exercise its powers have also been documented.140 Furthermore, the arbitrary nature in which this power has been exercised has also often been noted by the courts.141 The use of different procedures and policies by various states leads to further inconsistency in the use of such powers. Given that the subject of prisons and remissions falls within the domain of the state governments, most states have prepared their own remission policies. These are often detailed and extremely complicated documents that allow various permutations and combinations.142 Such policies were criticised by the NHRC in 1999, which further recorded that these systems and procedures were reported as not being followed meticulously.143 The NHRC noted that: …[s]everal instances have come to the notice of the Commission where certain inmates were not released nor their cases considered even after they had undergone the imprisonment for over 20 years. The Commission has, therefore, shown its concern and is of the view that it is high time that a uniform system of premature release of the prisoners is evolved for adoption by the State Governments.144 In 2003, the NHRC sent a circular containing procedures/guidelines on the premature release of prisoners to all the Chief Secretaries of the states.145 Despite these moves towards regularising a fair system of premature release, areas of concern remain as further restrictions on release have been placed in various state prison manuals on a number of convicts, including those convicted for various offences spanning rape, dowry death, abduction and murder of a child below 14 years, unnatural offences, robbery, persons sentenced


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under the NDPS Act, TADA, the Foreigners Act, the Passport Act, persons detained under the detention laws and prisoners guilty of violation of the jail manual.146 Such restrictions have also received support from the NHRC and were upheld as Constitutional by the Supreme Court in 2003.147 Besides the restrictions placed by the Executive and the Legislature, individual remissions and remission procedures are also subject to judicial review. The Supreme Court has adjudicated on the correctness or otherwise of Executive remissions in a number of cases, including one in which the Supreme Court struck down as discriminatory special remissions on the occasion of Republic Day granted only to convicts from the Scheduled Classes and Scheduled Tribes.148 Despite problems in the implementation of the remission powers of the Executive, these powers are a valuable component of the punishment theory and objective, ensuring that convicts sentenced to life imprisonment are released upon their showing sufficient improvement and reform. It in this context that a number of decisions of the Supreme Court, seeking to restrict the use of such powers by the Executive, raise concern.

Overstepping Limits: The Supreme Court Limiting Remission Powers The various decisions of the Supreme Court on the restrictions on remissions are unsurprising, given the clear trend in the Supreme Court itself towards longer and tougher imprisonment. In fact, as early as 1979, the Supreme Court had suggested that life imprisonment should actually last till the end of the convict’s life. The Supreme Court had noted: Taking a cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the man’s life, but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large.149 The Bombay High Court went a step further in 1982 when, after convicting an accused, it noted that he ‘will remain in jail at least for a period of 25 years notwithstanding the remissions and concessions, if any, granted to him under the relevant rules’.150 However, better sense prevailed: shortly thereafter, a Full Bench of the same court ruled that such a direction amounted to preventing the appropriate government from exercising its powers of remission. The court clarified: [A]ny direction which will require an accused to undergo such imprisonment as will be specified by a court, if it is more than 14 years, is bound to trench upon the powers of the executive specifically bestowed upon it under Sections 432 and 433.151

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Unfortunately, however, the Supreme Court appears to have been unaware of the wisdom of the Full Bench judgement of the Bombay High Court when, in a series of decisions, it directed a minimum period of 20 years’ imprisonment while awarding life sentences, and, in other cases, even directed that life imprisonment was to last for the rest of the convict’s life. In a landmark judgement, Subhash Chander etc. vs Krishan Lal & Others (2001), referring to accused Krishan Lal, the court directed that: …for him the imprisonment for life shall be the imprisonment in prison for the rest of his life. He shall not be entitled to any commutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the Rules made for the purposes of grant of commutation and remissions.152 The impact of this judgement was visible when it was cited only a few months later by another Bench which directed that the appellant should not be released from the prison unless he had served out at least 20 years of imprisonment.153 Similarly, in a TADA case, the court referred to the above cases and sentenced one of the accused to life imprisonment for the rest of his life.154 One month later, the same Bench again awarded another 20-year sentence citing all the above mentioned precedents.155 Similar punishment was also awarded in a number of other cases.156 In all the above judgements, the apex court did not discuss or distinguish between the broader implications of its directions. It also remains unclear as to whether the 1982 Bombay High Court judgement was brought to the attention of the Supreme Court. The Constitutional validity of these judgements, in particular those directing imprisonment without any possibility of remission or commutation, remains suspect as the Supreme Court appears to have overstepped its boundaries by placing restrictions on the remission powers of the Executive. This becomes more apparent given the number of cases where the Supreme Court has noted that powers of remission were available only to the Executive and struck down the judgements of the High Courts that directed premature releases in particular cases.157 In fact, it is arguable that these judgements that bar the state from exercising its powers of remission would further violate the doctrine of separation of powers understood to be part of the basic structure of the Indian Constitution. Perhaps more relevant to the present discussion is the fact that while all the above judgements of ‘life-for-life’ and minimum 20-year sentences emerged as alternatives to the death penalty, the rationale for the award was not the same. In the case of Subhash Chander, the stated object of the punishment was to prevent the accused from harming the remaining family members of the deceased, and the sentence was awarded on a concession sought from the counsel of the accused, who acted upon the specific instructions of the accused. All the other cases referred to this case did not follow any such procedure, thus making them even more suspect. Furthermore, while in most


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of the cases the courts awarded these special sentences after commuting the death sentence and arguing that it could not be said that the appellants were beyond reform, in the case of Pakistani ‘terrorists’ (Nazir Khan), the emphasis of the Bench was on making the punishment more stringent as it was unable to award the death sentence. The hardline approach was also evident in two cases in 2005, which added further twists to the tale. The case of Saibanna vs State of Karnataka (2005) is similar to the case of Subhash Chander in that here, too, it was the lawyer for the accused seeking a ‘20-year’ term. Unlike in the previous case, however, here the Supreme Court refused the plea of the lawyer and upheld the death sentence awarded by the High Court.158 In another case of the rape of a large number of minor girls by a self-professed swami in an ashram, the court noted that: …having regard to the amplitude of the gravity of the offence, perpetrated in an organized and systematic manner, the nature of the offence and its deleterious effects not only against the victims, but the civilized society at large, needs to be curbed by a strong judicial hand. This strong judicial hand translated into the Supreme Court upholding the arguably illegal order of the Trial Court that no remission of sentence or amnesty on any special occasions announced or to be announced by either the Central government or the state governments would apply to the sentence and imprisonment imposed on the accused persons.159 Another judgement in October 2006 in which the Supreme Court again directed that the accused not receive the benefit of any remission or commutation from the State whatsoever, unfortunately suggests that the Supreme Court is continuing with such directions without considering their impact on the concept and object of punishment itself.160 Support for these moves by the Judiciary towards longer sentences comes from various quarters. The Malimath Committee, too, supported the use of ‘Imprisonment for life without commutation or remission’ as followed in the US.161 In fact, the manner in which the Supreme Court has pitted this as a move away from the death penalty has also led it to receive some arguably misplaced support from human rights and prisoners rights groups.162 Examining the situation from the perspective of the object of punishment can suggest a possible way out. Much like the death sentence, life-for-life sentences defeat the very idea of reform, assuming that such a possibility cannot arise at any stage. The case of 20-year sentences is more complicated in that there is no clear rationale to argue for or against. There is little to suggest that reform is more likely in 20 years as opposed to the present minimum of 14 years imprisonment. Further longer and life-long sentences also raise serious concern given the present prison conditions.163 The general perception of prisons being a comfortable escape from ‘capital punishment’ also leads to increased calls for more stringent punishment,

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which translates into longer terms when the death sentence is unavailable. It is unfortunate that such dangerous misconceptions find support even in the Judiciary and the government, and lead subsequently to misguided and warped policies on punishment and sentencing.

CONCLUSION This lack of a clear policy on sentencing was even noticed by the Supreme Court in respect of capital punishment when it observed that even 27 years after the Supreme Court laid down the ‘rarest of the rare’ formulation, there was no clarity in the court as to which case fit this test. The eventual decision depended upon personal views of judges, who used different criteria in their decisions.164 The confusion is not only one of a sentencing policy, but also one on our understanding of, and aims of, the punishment system. In State of Gujarat and Another vs Hon’ble High Court of Gujarat (1998), the Supreme Court dismissed deterrence as part of a ‘conservative old school of thought’ and retributive punishment as having ‘waned into a relic of the permittivity because civilised society has realised that retribution cannot solve the problem of escalating criminal offences’. The court further noted, ‘The emphasis involved in punishment has now been transposed from retribution to cure and reform so that the original man, who was mentally healthy, can be recreated from the ailing criminal.’ It, therefore, concluded, ‘Reformation should hence be the dominant objective of a punishment and during incarceration every effort should be made to recreate the good man out of a convicted prisoner.’165 However, in another case shortly after, the court returned to its ‘reasonable’ approach attempting to balance the considerations of reform and deterrence and shunning retribution, saying, Punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for a tooth, rather having its due impact on the society: while undue harshness is not required but inadequate punishment may lead to sufferance of the community at large.166 The recent emphasis of the court on addressing society’s ‘cry of justice’ (read vengeance) also raises important questions about the very aim of our punishment system itself. Nearly 60 years after Independence, we are unclear about punishment and about why we are moving towards harsh punishment: Is it because society wishes it so? Is it because the offender deserves such punishment? Do we punish to prevent the offender from committing further similar offences or to deter others from following the same example? Do we sometimes use a few of the above or sometimes even all? What, then, of reformation, which is still some times paid lip service to, despite the recent growing resort to harsher punishment? At one level, the mixed metaphors in the title of this essay


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reflect the mixed messages that have emerged from the Indian courts themselves in terms of sentencing and punishment. The futility of increased punishment as a mode of controlling crime is an oft-discussed subject, but one that the Legislature does not acknowledge.167 The Prevention of Food Adulteration Act, 1954 was amended in 1964 and the Legislature stated: ‘The penal provisions of the Act are inadequate…they should be made more deterrent in order to have an effective check on the evil of adulteration.’ That this increased punishment clearly had no effect in curbing crime was not observed by the Legislature when passing the 1976 amendments to make the act more stringent. Similarly, the Statement and Objects of the Prevention of Blackmarketing Act, 1980 noted that the ordinance was passed by the President in 1979 because of the fact that the Essential Commodities Act, 1955, even with its penalties made more stringent, had been inadequate. Despite this reality, the ‘get tough’ approach on crime and punishment remains a vital political and rhetorical tool for legislators and the Executive. Nowhere is this more evident than the calls for death penalty for rape—a cry that resurfaces every now and then when political expediency demands it.168 Rather than threatening through the prospect of prosecution and conviction, the idea remains to frighten through the violence of punishment itself—severity rather than certainty.169 With increasing crime and resultant fear, tough criminal law and harsh punishment receives support from a large majority which sees the Judiciary and its ‘activism’ as the last bastion to preserve order while Executive and Legislature abdicate their responsibilities. Despite developments in penology and criminology, there is hardly any alternative to prison and moves to reduce entry into prisons through probation and so on are highly neglected, discredited and even ignored. On the other hand, longer incarceration and life-for-life sentences represent the danger ahead, with most even in the human rights movement unclear of their response to such challenges. Furthermore, with the dominant middle class’ deep-seated resentment towards (the mostly poor) convicts, the interest in prisoners and conditions of prisons seen in the 1970s and the early 1980s is no longer visible.170 Other inconsistencies and mixed messages in punishment and sentencing, however, are systemic and institutional. Thus, while this chapter discussed the chivalrous attitude of the courts in resorting to extreme punishment while expressing outrage in dowry death and rape-murder cases, there are illustrations of a number of instances where the court has been lax and even indulgent in sentencing and punishment in cases involving sexual assault of children.171 Yet others have illustrated how the Judiciary’s sentencing in rape cases is concerned largely with the restoration of the rapist’s position in society, suggesting that rape is not a ‘hard crime’.172 A similar approach is also taken by the Legislature which, while consistently moving towards a tough stand on crime and punishment, has shown a tendency to engage in convenient doublespeak in respect of legislations to prevent sati and protect Dalits and tribals. The inclusion of harsh and mandatory punishment along with weak implementing measures ensures that while asserting that something is being done, the legislations rarely have more than a symbolic impact with barely any prosecutions.

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The State’s liability is not limited to commission but to omission, too. The lack of any enactment on corporate crime, the response to mass crimes (arguably genocides) in riots, on the one hand, while avoiding the whole subject of excessive arrests, slow trials, lack of bail, unavailability of legal aid and the resultant large number of undertrials, on the other, leaves little doubt of the ‘weak stomach’ in addressing systemic ills in the CJS. Furthermore, the manner in which the State promotes impunity by its legal impediments and requirement of sanction, as also by its de facto lack of serious prosecution and safeguards its own soldiers, policemen and influential politicians, reiterates the dual nature of operation of the CJS. In such a scenario, the use of harsh and stringent punishment is akin to the street magician’s use of one hand to distract while making the coin disappear with the other. Justice, meanwhile, remains a magical illusion for most as courts and prisons further degenerate under the load of more undertrials and convicts, and no clear direction in terms of punishment. Given the commonalities of the two committees, and the reliance being placed on the Malimath Report by the Committee drafting the National Policy on Criminal Justice, it is perhaps unrealistic to expect anything other than old (NDA-BJP) wine in a new (UPA-Congress) bottle. Yet, even if the Menon Committee can deliver a nuanced sentencing policy, it would be a task well begun.

NOTES & REFERENCES 1. See, for instance, Baxi, Upendra. 1982. Crisis of the Indian Legal System. New Delhi: Vikas Publishing House, which along with other publications of the time identified some of these concerns. Unfortunately they remain as topical and valid even a quarter of a century later. 2. At the time of his death, Akku Yadav had been charged in 26 criminal cases ranging from gang-rape in 1991 to murder, robbery, dacoity, housebreaking, assault, criminal intimidation and extortion. Prior to his death, he had been arrested about 14 times and had also been previously detained for a year under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981. Even though officially ‘externed’ from Nagpur in 2004, Akku Yadav was able to remain in the area, apparently due to police complicity. See ‘Killing Justice: Vigilantism in Nagpur 2005’, pp. 7–8. Commonwealth Human Rights Initiative. New Delhi. 3. See Raj Deo Sharma (II) vs State of Bihar (1999) Vol. 7, Supreme Court Cases, Page 604. (All Supreme Court Cases citations are hereinafter written as Year, Vol. No., Supreme Court Cases, Page No. Similarly in all other citations, the last number refers to the page number.) See also State of Rajasthan vs N.K—an accused, (2000) 5 Supreme Court Cases 30, where the Supreme Court, overturning the High Court judgement in a rape case after finding the acquittal unmerited, observed: ‘An unmerited acquittal encourages wolves in the society being on prowl for easy preys, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists.’ Yet, puzzlingly, the Supreme Court deemed the two years served in prison by the accused to ‘meet the end of justice’. 4. The Committee was headed by former Justice V.S. Malimath and set up by the Bharatiya Janata Party-led National Democratic Alliance (NDA) government in November 2000 (hereinafter the Malimath Committee). The full report of Committee is available at http://mha.nic.in/criminal justice system.pdf, accessed on 3 May 2008.


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5. See particularly page 4–5, Malimath Report. While these views are not themselves new and have been heard on a number of occasions in the past decades, it is the frequency, vehemence and authority with which they are expressed that also raises concern. 6. The Malimath Report focussed on attacking the rights of the accused and diluting key procedural safeguards provided to the accused. Among its recommendations were, doing away with the right to silence and making an adverse inference when the accused remained silent on any point; making confession recorded by a police officer admissible in Court; reduction of standard of proof from ‘beyond reasonable doubt’ to a new lower standard, and so on. See Amnesty International India. 2003. The (Malimath) Committee on Reforms of Criminal Justice System: Premises, Politics and Implications for Human Rights (September). Delhi. 7. Interestingly this appears to be a position across party lines. While the report of the Malimath Committee reflected the perception of the CJS shared by many within the NDA government of that time, the Committee to draft a National Policy on Criminal Justice was appointed in May 2006 by the Congress-led United Progressive Alliance (UPA) government. Interestingly, the chairperson of the present committee, Prof N.R. Madhava Menon, was also a member of the Malimath Committee. In fact, the new committee, that is the Menon Committee, begins the outline of its own task with a two-paragraph excerpt from the Malimath Report. See Towards a National Policy on Containing Crime and Managing an Efficient and Effective Delivery of Criminal Justice System, undated. Available online at http://mha.nic.in/NCJSP/backgrnd_perspective.pdf, accessed on 3 May 2008. 8. See Ramanathan, Usha. 2006. ‘Crime and Punishment’, in Seminar, No. 557, January. New Delhi. 9. This paper limits itself to punishment as advocated, legislated and awarded by the various functionaries within the CJS and excludes other de facto (caste panchayats, jan adalats of the Maoists-Naxalites) and de jure systems of punishments (as applicable to the armed forces or in educational institutions, and so on). Furthermore, the present paper does not examine the issue of punishments within prisons or other like-placed institutions. 10. The very existence of a dominant rehabilitation driven punishment regime in India is doubted by many, but there is little doubt that the 1970s did see some attempts in the Judiciary to move towards a punishment and sentencing policy largely built upon the pillars of reform and rehabilitation. This has been discussed later in the paper. 11. Given the broad scope of this paper, a small disclaimer on methodology is in order. Examining the actions of any State machinery (in this case the Legislature, the Judiciary and the Executive) carries with it its own problems. It is obvious that judgements delivered by the courts are affected by numerous, often unknown, extraneous factors. Similarly, the particular contexts and demands leading to, as also the real intention and thought behind, any penal statute or amendment passed by legislation is virtually impossible to catalogue and study. Yet, it is important to not completely ignore the stated object of legislation or the stated rationale of a particular judgement. While not necessarily evidence of intent as applicable in a court of law, the text itself is a valuable indicator of how the particular judgement or statute was being placed before the citizenry-audience. Of course, the large number of cases decided by different benches with different personal views, positions and understanding of the legislative intent often leads to judgements which may not necessarily fit within the discussed patterns or trends, but these are clear exceptions to the patterns and do not dramatically affect the trend. 12. Chapter III, Indian Penal Code, Sections 53–75 discuss the various aspects of punishment. Given that the highest punishments allowed in penal law are the death sentence and life imprisonment, this essay obviously focuses on these. Furthermore, it is also clear that major debates on the object and impacts or result of punishment often take place in the context of the death sentence. The Supreme Court of India is no exception to this, and, as the later discussion of the essay illustrates, many a battle between judges on the viability of reformation have been fought with the life of a particular accused hanging in the balance. 13. See Dhavan, Rajeev. 2000. ‘Kill Them for Their Bad Verses: On Criminal Law and Punishment in India’ in Shankardass, Rani Dhavan (ed.), Punishment and the Prison. New Delhi: Sage Publications. Also see the discussion on the sentence of transportation for life in the Report of the Indian Law Commission on the Penal Code of 14 October 1837.

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14. In fact, even consecutive sentences could not be longer than an aggregate of 14 years. See Section 35(2), CrPC, 1898. See also Malik, Balwant Singh. 1999. ‘The Law of Punishments of Transportation for Life and Imprisonment for Life—A Critical Appraisal’ in 5 Supreme Court Cases Journal Section 4. 15. Code of Criminal Procedure (Amendment) Act, 1955, which came into effect from 1 January 1956. The act is also referred to as Amending Act 26 of 1955. 16. Other improvements included the repeal of the Whipping Act of 1909. 17. Law Commission of India, 39th Report on Punishment of Imprisonment for Life under the Indian Penal Code, 1968. 18. See the judgement of the Constitutional Bench of the Supreme Court in Gopal Vinayak Godse vs State of Maharashtra (All India Reporter 1961, Supreme Court 600). 19. Given the domination of the Congress Party in Parliament at the time, it is unlikely that this difference in positions is one emerging out of any conflict between the Congress government and Parliament. Instead, it suggests a nuanced and layered approach to the problem by the government—making strong statements through Parliament but leaving the government sufficient scope to remit and commute sentences. 20. Law Commission of India, 42nd Report on the Indian Penal Code, 1971. In fact, the Law Commission also recommended that of the 40 offences in the IPC in which life imprisonment was an alternative punishment to imprisonment, it was required only in 16. In the rest, the fixed terms would be sufficient, or needed to be modified slightly. 21. Murali, K. 2004. ‘Andhra Pradesh: Premature Release of Prisoners’, Economic and Political Weekly, 25 September. 22. The Supreme Court noted that this is one of the main reasons why the High Court awarded the death sentence in Malya Apad Arat vs State of Maharashtra (1969) 3 Supreme Court Cases 723. 23. As per the provisions of the Rajasthan Prisons (Shortening of Sentences) Rules, 1958. 24. The views of the committee were discussed in Ashok Kumar Alias Golu vs Union of India (1991) 3 Supreme Court Cases 498. 25. All the bills were private members’ bills. Despite the personal views of Mahatma Gandhi and Jawaharlal Nehru, the Congress Party never officially endorsed the abolition of the death penalty. The 1956 Bill was tabled by Mukund Lal Agrawal. In 1958, it was by the actor-Parliamentarian, Prithvi Raj Kapur. In 1961, it was by Savitry Devi Nigam, and in 1962 by Raghunath Singh. 26. Law Commission of India, 35th Report on Capital Punishment, 1967. 27. Jagmohan Singh vs the State of Uttar Pradesh (1973) 1 Supreme Court Cases 20. 28. These reductions in the scope of capital punishment must also be seen in the context of an international scenario where there was little consensus against the death penalty and abolitionist voices were few and far between, making the approach of the Indian Parliament all the more creditable. Of course, one cannot underestimate the importance of the UK abolishing the death sentence and its influence on Indian legislators’ views on the subject. 29. In 1951, only 27.76 per cent of death sentences were commuted. This figured improved to 28.51 per cent from 1957 to 1962 and rose to over 47 per cent between 1968 and 1974. This data, derived from the July 1974 issue of Journal of Social Defence, has been excerpted in Sirohi, J.P.S. 1980. Criminology and Criminal Administration. Allahabad: Allahabad law Agency, and reproduced in Baxi, Upendra. 1987. ‘Capital Punishment’, in Encyclopaedia of Social Work in India, Vol. 1. New Delhi: Ministry of Information and Broadcasting, Government of India. 30. See, generally, Brij Kishore Pandey vs State of Uttar Pradesh (1971) 3 Supreme Court Cases 931, where the court noted that it did not wish to lay down any guidelines of even set a precedent for cases as it would disturb the discretion available to the court. The Supreme Court, therefore, noted, ‘We therefore proceed to decide this case on its own facts without laying down any law for future guidance.’ 31. Observe the almost flippant language of the courts when dealing with a capital sentence in Bhagwan Singh vs State of Punjab (All India Reporter 1952 Supreme Court 214). In a complete contrast from today, the court was rarely interventionist. See Rameshwar and Another vs State of Uttar Pradesh (All India Reporter 1973 SC 926) where the convict, being old, was insufficient to warrant the awarding of any sentence less than death; Nisa Stree vs The State of Orissa (All India Reporter 1954 Supreme Court 279), where a young woman of 20 was sentenced to death or


32.

33. 34. 35. 36.

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Tori Singh vs State of Uttar Pradesh (All India Reporter 1962 Supreme Court 399), where a 25-year-old was seen as mature rather than a young boy. See, generally, Sathe, S.P. 2003. Judicial Activism in India (October). Delhi: Oxford University Press. At best, where the court deemed it fit to no impose death sentence, it argued in terms of ‘ends of justice’ or ‘peculiar circumstances of the case’. It is clear, however, that that, too, was inconsistent with neither phrase carrying any particular meaning. See Raghubir Singh vs Uttar Pradesh (1972) 3 Supreme Court Cases 79. For a blatant example of the use of such arguments to merely camouflage private patriarchal views, see Nika Ram vs Himachal Pradesh (1972) 2 Supreme Court Cases 80, where the ‘ends of justice’ was argued to commute the sentence of a husband who murdered his unchaste wife solely on that ground that her abusing the husband when asked about the paternity of the child was ‘adding insult to the injury’. Section 354(3), CrPC 1973. Lehna vs State of Haryana, (2002) 3 Supreme Court Cases 76. See the 41st report on the Code of Criminal Procedure, 1898 (1969), as also the 42nd Report on the Indian Penal Code (1969) that had suggested numerous changes in the IPC. That this was meant as a specific step is clear from the letter written by the Ministry of Home Affairs to the State in which it noted: It may be pointed out that the restriction introduced by Section 433A does not apply to all life convicts. It applies only to those prisoners who are convicted of a capital offence, i.e., an offence for which death is one of the punishments prescribed by law. Once the Indian Penal Code (Amendment) Bill becomes the law, offenders sentenced under proposed Section 302(i) will not be covered by this provision as the offence will not be a capital offence. Thus in future the restriction introduced by Section 433A will not be applicable to them and will, in effect, cover only a very small number of cases. Even in this small number of cases the restriction will not in any way curb the Constitutional power to grant remission and commutation vested in the President or the Governor by virtue of Articles 72 and 161. (Emphasis added)

37. 38.

39. 40.

41. 42.

43.

The letter is cited in Ashok Kumar Alias Golu vs Union of India, (1991) 3 Supreme Court Cases 498. In this case, the petitioner had challenged the validity of this provision in the absence of the complementary amendment of the IPC. Thimma vs Union of India, 1981 Criminal Law Journal 244 (Karnataka). See the Law Commission’s 42nd Report on the IPC. Interestingly, the Law Commission did not recommend the minimum 14 years amendment as they, arguably incorrectly, deemed it to interfere with powers of clemency of the President and Governor under Articles 72 and 161, respectively. Jagmohan Singh vs the State of Uttar Pradesh, (1973) 1 Supreme Court Cases 20. New legislation was also introduced, ostensibly to curb newer forms of crime. But, as hindsight suggests, these were largely weapons to harass political opponents and dissenters. This is also evident from the fact that the focus of such legislation was largely the ‘necessary evil’ of preventive detention. This included the Maintenance of Internal Security Act, 1971; the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976; the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (the ordinance was passed in 1979); and the National Security Act, 1980. See Statement of Objects and Reasons of the Amendment Act. See Statement of Objects and Reasons of the Amendment Act. The amendments were as per the recommendations of the Committee on Untouchability, Educational and Economic Development of the Scheduled Castes appointed in 1965. See the plea for training of judges in new trend in penology and sentencing procedure by Justice Bhagwati in Santa Singh vs State of Punjab, (1976) 4 Supreme Court Cases 190.

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44. (1973) 2 Supreme Court Cases 793. The bench dismissed the appeal observing, ‘Two men in their twenties thus stand convicted of murder and have to suffer imprisonment for life because the punitive strategy of our Penal Code does not sufficiently reflect the modern trends in correctional treatment and personalised sentencing.’ 45. Ediga Anamma vs State of Andhra Pradesh (1974) 3 Supreme Court Cases 443. 46. The reference to transplantation was required given by the recent cynicism of the Supreme Court towards ‘kindly’ Western social reformers in other cases. Of course, Justice Iyer was also careful to note that all these factors were merely for guidance and the present case had to be disposed of under the existing code falling back on the ‘judicial hunch in imposing or avoiding capital sentence’. 47. Chawla and Another vs State of Haryana, (1974) 4 Supreme Court Cases 579. 48. Suresh Chandra vs The State of Gujarat (1976) 1 Supreme Court Cases 654. See also Krishan Lal vs State of Delhi (1976) 1 Supreme Court Cases 655 in which, while refusing to decrease the punishment awarded to a lower division clerk for the offence of forgery, the Supreme Court reiterated (in fact, repeated) the suggestion of early release as a month ago in Suresh Chandra. 49. Paras Ram vs State of Punjab (1981) 2 Supreme Court Cases 508. Curiously, while the judgement was delivered on 9 October 1973, it was reported only in 1980. 50. Harnam vs State of Uttar Pradesh, (1976) 1 Supreme Court Cases 163, and Raisul vs State of Uttar Pradesh (All India Reporter 1977 Supreme Court 1822). 51. Bachchey Lal vs State of Uttar Pradesh, (1976) 4 Supreme Court Cases 305. 52. Contrast the judgement of the Court in Santa Singh vs State of Punjab (1976) with those in Dagdu vs State of Maharashtra (All India Reporter 1977 Supreme Court 1579) and Tarlok Singh vs State of Punjab (All India Reporter 1977 Supreme Court 1747). 53. K.N. Chandrasekharan Pillai, ‘Judicial Attempts to Evolve a Rational Sentencing Policy for India: Reflections on Reading Mohammad Giasuddin vs State of A.P.’ (1978) 2 Supreme Court Cases Journal Section 9. 54. Mohammad Giasuddin vs State of A.P. (1977) 3 Supreme Court Cases 287. 55. Shaikh Abdul Azees vs State of Karnataka (All India Reporter 1977 Supreme Court 1485). 56. Joseph Peter vs State of Goa, Daman and Diu (All India Reporter 1977 Supreme Court 1812). 57. However, as the judgement of the Supreme Court in Sunil Batra vs Delhi Administration and Ors illustrated, there as still as much, if not more, interest in deterrence as in reformation and rehabilitation. (1978) 4 Supreme Court Cases 494. 58. See generally, Pande, B.B. 1979. ‘Face to Face with Death Sentence: Supreme Court’s Legal and Constitutional Dilemmas’, in 4 Supreme Court Cases Journal Section 39. 59. Rajendra Prasad vs State of Uttar Pradesh (1979) 3 Supreme Court Cases 646. 60. Bishnu Deo Shaw vs State of West Bengal, (1979) 3 Supreme Court Cases 714. 61. The majority judgement virtually gloats that Rajendra Prasad and Bishnu Deo Shaw ‘indubitably laid down the normative cynosure and until overruled by a larger bench of this Court, that is the law of the land under Article 141’. Dalbir Singh and Others vs State of Punjab, (1979) 3 Supreme Court Cases 745. 62. Interestingly, in the present judgement, both majority and minority were in agreement on death sentence for white-collar criminals, with Justice Sen even wishing for the law to provide so for persons who indulge in theft or illegal trade and export of art treasures and antiques or what remains of our national heritage; adulteration of food; manufacture of spurious drugs, illegal sale of narcotics and alcohol; and even for smuggling of gold or other contraband. According to Justice Sen, this was necessary to protect the basic economic order of the nation. In this respect Justice Sen noted that West Bengal had already made sale of spurious drugs and adulteration of food punishable with life imprisonment. 63. Justice Sen also revealed a very personal involvement in the case as well when he stated: ‘I have no sympathy for these trigger-happy gentlemen and the sentence imposed on them is well-merited.’ 64. Bachan Singh s/o Saudagar Singh vs State of Punjab (1979) 3 Supreme Court Cases 727.


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65. Kailasam argued: ‘In fact, if I am a strong believer of abolition of death sentence or supporter of “life for life” and “tooth for tooth” doctrine I would have excused myself from deciding a case involving confirmation of death sentence.’ He then noted that Krishna Iyer ‘has not concealed his abhorrence at the infliction of death sentence’ and actually pleaded that the death sentence be abolished. Kailasam continued: ‘I have great respect for the views of the learned judge. He is strongly espousing a cause but I feel embarrassed when I was required to follow his views for I consider it my solemn duty to administer the law of the land, as it stands.’ With reference to the Rajendra Prasad judgement, the judge noted: ‘I do not feel it necessary to refer to the various points dealt with by Krishna Iyer, J. in his long and learned “essay”…. Apart from being unable to agree with the guidelines prescribed, I am of the view that the general principles laid down are not the ratio decidendi of the case. The courts are not bound to follow them.’ 66. (1980) 2 Supreme Court Cases 684. 67. Unfortunately, despite such a strong focus on reform, the judgement upholding the death sentence also relied on deterrence and retribution, which it did not see as two divergent ends but instead as ‘convergent goals which ultimately merge into one’. Here, again, the court relied on the Law Commission’s 35th Report on Capital Punishment (1967) for support. 68. See Pande, B.B. 2000. ‘Emergence of prisoners’ right touchstone in India’, The Lawyers Collective, November, Delhi. Also see Hingorani, Pushpa Kapila. 2000. ‘The problems of Undertrials—I: Hussainara Khatoon and Public Interest Litigation’, in Shankardass, Rani Dhavan (ed.), Punishment and the Prison. New Delhi: Sage Publications. 69. Shidagouda Ningappa Ghandavar vs State of Karnataka (All India Reporter 1981 Supreme Court 764) was one of the few where Bachan Singh was directly stated to be the reason. 70. See Justice Sen’s minority judgement in Earabhadrappa alias Krishnappa vs State of Karnataka, where he observed: ‘The appellant was guilty of a heinous crime and deserves the extreme penalty. But we are bound by the rule laid down in Bachan Singh vs State of Punjab where the Court moved by compassionate sentiments of human feelings has ruled that sentence of death should not be passed except in the “rarest of the rare” cases.’ The judge disapprovingly noted this unfortunate position: ‘The result now is that capital punishment is seldom employed even though it may be a crime against the society and the brutality of the crime shocks the judicial conscience.’ (1983) 2 Supreme Court Cases 330. See also Amrik Singh vs State of Punjab, 1988 (Supp) Supreme Court Cases 685. 71. Mithu vs State of Punjab (1983) 2 Supreme Court Cases 277. 72. Machhi Singh vs State of Punjab (1983) 3 Supreme Court Cases 470. 73. Maru Ram and Ors vs Union of India and Ors (All India Reporter 1980 Supreme Court 2147). 74. ‘No new discovery by Parliament in 1978 about the futility or folly of these special and local experiences, spread over several decades, is discernible. No High-power committee report, no expert body’s recommendations, no escalation in recidivism attributable to remissions and releases, have been brought to our notice. Impressionistic reaction to some cases of premature release of murderers, without even a follow-up study of the later life of these quondom convicts, has been made. We find the rise of enlightenment in penological alternatives to closed prisons as the current trend and failure of imprisonment as the universal lament.’ 75. The majority opinion was written by Justice V.R. Krishna Iyer on behalf of himself, Chief Justice Y.V. Chandrachud and Justice P.N. Bhagwati. 76. At its basic though, the dispute was only one of degree. The majority, too, accepted that the time had not arrived to exclude deterrence and even public denunciation altogether, and that rehabilitation was not ‘such a high component of punishment as to render arbitrary, irrational and therefore, unconstitutional, any punitive technique which slurs over prisoner reformation’. Maru Ram and Ors vs Union of India and Ors. All India Reporter 1980 Supreme Court 2147. 77. For more on the politics of such legislation, see generally Ujjwal Kumar Singh. 2006. ‘The Silent Erosion: AntiTerror Laws and Shifting Contours of Jurisprudence in India’, in Diogenes, 53(4): 116. 78. Section 4 provides for a sentence of life imprisonment or death for a person who abets the commission of sati, directly or indirectly.

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79. Till 1988, this Act targeted the possession of prohibited arms with intent to use but did not provide for penalties for actual use of illegal arms, as it was deemed that the IPC could take care of cases where hurt was caused due to use of such arms. After the 1988 Amendment, while ‘ordinary’ murders could be punished with either life imprisonment or death, those committed with prohibited arms carried the mandatory death sentence. Where no death was caused, punishment ranged between seven years and life imprisonment (Section 27). 80. Section 31A. 81. Section 3(2)(i) provides that any non-Scheduled Caste-Scheduled Tribe member who intentionally gives or fabricates false evidence where a Scheduled Caste-Scheduled Tribe member is convicted in a capital trial shall be sentenced to life imprisonment, and if such a member is executed, the person who gave or fabricated such false evidence shall be punished with death. See the Statement of Objects and Reasons of the Act. 82. Section 364A. 83. The initial call was given in response to an incident in which a number of nuns were raped in Jhabua. the incident was used by the BJP as a major political weapon. See ‘Death Sentence for Rapists Soon’, The Telegraph, 5 October 1998. In fact, when confronted by a private members bill on ‘prevention of barbarous and beastly cruelty against women’, moved by Congress Member of Parliament Saroj Khaparde in the Rajya Sabha, Home Minister L.K. Advani responded stating that the government had already started the process of consulting states on a bill to award capital punishment to rapists. See ‘Bill for Death to Rapists: States Consulted’, The Hindu, 5 December 1998. For varying responses, see generally ‘PUDR Opposes Death Penalty for Rape’, The Hindu, 4 November 1998. ‘Harsh, but just’, India Today, 9 November 1998. Dr Mohini Giri of the National Commission for Women suggested ‘bobbitisation’ instead of the death penalty. See The Times of India, 2 November 1998. 84. ‘Carrying RDX to Be Capital Offence’, The Asian Age, 8 September 1998. 85. See the recommendations of the Malshekar Committee that recommended amendment to the Drugs and Cosmetics Act, 1940. See ‘Making fake drugs is equal to murder’, The Times of India, 9 November 2003. 86. The proposed legislation makes no distinction between passive observers and abettors of a sati, holding them equally culpable punishable by death sentence or life imprisonment. See ‘Renuka Wants Entire Village Booked for Sati’, The Hindustan Times, 12 November 2006. 87. Maktool Singh vs State of Punjab (1999) 3 Supreme Court Cases 321. 88. The amendments in 1984 were passed on the basis of the recommendations of the Joint Committee of the House of Parliament and, in 1986, under pressure from ‘women’s voluntary organisations’. See Statement of Object and Reasons of the Amending Act. 89. Virbhan Singh and Anr vs State of Uttar Pradesh (1983) 4 Supreme Court Cases 197. 90. Kailash Kaur vs State of Punjab (1987) 2 Supreme Court Cases 631. Even though the Supreme Court did call for the maximum punishment, it did not impose the death sentence in this case even though it expressed its regret that the Sessions Judge did not award the death penalty and that the state government did not appeal for enhancement of sentence before the High Court. It is not quite clear whether this was an example of a very technical Court or an instance of the Court running with the hare and hunting with the hounds. See also the SCC Editor’s note at page 631, above the text of the SCC judgement, where he refers to the ‘socio-legal’ obligation of the courts to award the death sentence to produce a deterrent effect in such cases. 91. Jagdish vs State of Rajasthan, 1989 Supp. (1) Supreme Court Cases 20. 92. Lichhmadevi vs State of Rajasthan (1988) 4 Supreme Court Cases 456. The case was well known as previously the Supreme Court had struck down the direction by the High Court that the execution be carried out at a public ground in Jaipur after giving due publicity. See Attorney General of India vs Lachma Devi and Others (All India Reporter 1986 Supreme Court 467). 93. (1985) 4 Supreme Court Cases 476. 94. (1985) 4 Supreme Court Cases 476. Unfortunately, the Supreme Court did not follow its own advice and, instead, proceeded on a long lecture on the lack of dowry in the ‘olden days in the Hindu community…[where] society looked upon women as living goddesses. Where ladies lived in peace, harmony and with dignity and status….’


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95. Mahesh s/o Ram Narain and Ors vs State of Madhya Pradesh (1987) 3 Supreme Court Cases 80. 96. Allauddin Mian and Others vs State of Bihar (1989) 3 Supreme Court Cases 5. 97. (1991) 3 Supreme Court Cases 471. These two cases also reflect the manner in which the Supreme Court dealt with the mandatory sentencing hearings required under Section 235(2) of the Code. In Allauddin Mian, the Supreme Court noted the lack of observance by the Trial Court of the statutory requirements and further noted that due to the same sufficient material on sentencing had not come on record. This allowed the court to commute the death sentences. In Sevaka Perumal, however, the Supreme Court allowed the non-observance of the sentencing hearing, stating that no special facts were brought to the notice of the High Court when there was an opportunity. 98. Madan Gopal Kakkad vs Naval Dubey and Anr (1992) 3 Supreme Court Cases 204. 99. State of Himachal Pradesh vs Asha Ram (2005) 13 Supreme Court Cases 766. ‘Here is the case where the crime committed by the respondent not only delicts the law but it has a deleterious effect on the civilized society. Gravity of the crime has to be necessarily assessed from the nature of the crime. A crime may be grave but the nature of the crime may not be so grave. Similarly, a crime may not be so grave but the nature of the crime may be very grave. Ordinarily, the offence of rape is grave by its nature. More so, when the perpetrator of the crime is the father against his own daughter it is more graver (sic) and the rarest of rare, which warrants a strong deterrent judicial hand.’ (Emphasis added). Unfortunately, the Bench also revealed its own preconceived notions on rape and chivalry: ‘Even in ordinary criminal terminology a rape is a crime more heinous than murder as it destroys the very soul of hapless woman…. By betraying the trust and taking undue advantage of trust reposed in him by the daughter, serving food at odd hours at 12.30 A.M. he ravished the chastity of his daughter, jeopardized her future prospect of getting married, enjoying marital and conjugal life, has been totally devastated. Not only that, she carries an indelible social stigma on her head and deathless shame as long as she lives.’ 100. Dhananjoy Chatterjee alias Dhana vs State of WB, 1994 (2) Supreme Court Cases 220. 101. While there was a certain trend towards harsher punishment, there were many exceptions, too. Thus, in a dowry death case in Hem Chand vs State of Haryana, the apex court, while upholding the conviction, reduced the sentence from life imprisonment to 10 years imprisonment, arguing that the award of the maximum and extreme punishment of imprisonment for life should be in rare cases and not in every case, and that in this the lesser sentence would meet the ‘ends of justice’. Clearly the Supreme Court did not agree with the High Court’s rationale that the accused-appellant, being a police employee, was an aggravating factor and that bride-killing cases were on the increase. None of the judges here asked who would police the police. (1994) 6 Supreme Court Cases 727. 102. Rajvi alias Ram Chandra vs State of Rajasthan (1996) 2 Supreme Court Cases 175. It is this vicious vociferousness of the Supreme Court that also allows for others to play to the gallery. In State of AP vs T. Prasanna Kumar, Judgement Today 2002 (7) SC 635, the lawyer representing the complainant asked the court to ignore the law and sentence the rapists to death, contending that ‘while strict letters of law, may be to some extent, relieve the respondent herein but society would be better off without these elements. Rape is a crime against the society and the resultant violence causing the death there after can be as cruel as a deliberate act, which should attract the provisions of section 302 of the Indian Penal Code.’ That such a contention was taken seriously enough to reproduce and discuss in the judgement raises concern. 103. (2003) 8 Supreme Court Cases 13. 104. Lalita Jalan and Anr. vs Bombay Gas Co. Ltd and Ors (2003) 6 Supreme Court Cases 107. 105. State of Madhya Pradesh vs Babbu Barkare @ Dalip Singh (2005) 5 Supreme Court Cases 413. Again, more concerning is the rationale given by the Supreme Court on why the offence of rape is so serious: ‘The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. The offender robs the victim of her most valuable and priceless possession that is dignity.’ [Emphasis added]

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106. State of Madhya Pradesh vs Munna Choubey and Anr (2005) 2 Supreme Court Cases 710. However, in a rape and murder case, Surendra Pal Shivbalakpal vs State of Gujarat (2005) 3 Supreme Court Cases 127, the Supreme Court commuted the death penalty as the appellant was a first-time offender and ‘was a migrant labour from U.P.…living in impecunious circumstances’. 107. State of Madhya Pradesh vs Santosh Kumar (2006) 6 Supreme Court Cases 1. 108. Union of India vs Kuldeep Singh (2004) 2 Supreme Court Cases 590. 109. Sushil Murmu vs State of Jharkhand (2004) 2 Supreme Court Cases 338. 110. See Ram Deo Chauhann & Raj Nath Chauhan vs State of Assam (2000) 7 Supreme Court Cases 714 and All India Reporter 2001 Supreme Court 2231 and Gentela Vijayavardhan Rao & Anr vs State of Andhra Pradesh (All India Reporter 1996 Supreme Court 2791). 111. Devinder Pal Singh vs State (National Capital Territory of Delhi) and Anr (2002) 5 Supreme Court Cases 234. 112. Nazir Khan and Ors vs State of Delhi (2003) 8 Supreme Court Cases 461. The court was, of course, extremely politically correct in not blaming any particular religion and noted: ‘No religion propagates terrorism or hatred. Love for all is the basic foundation on which almost all religions are founded. Unfortunately, some fanatics who have distorted views of religion spread messages of terror and hatred.’ 113. Simon and Ors vs State of Karnataka (2004) 2 Supreme Court Cases 694. Interestingly, this decision and rare enhancement was directed by Justice Sabharwal, who went to become the Chief Justice of India, and, in fact, stated that he personally favoured the abolition of capital punishment. 114. While the judgement of the POTA-designated court is unreported, the High Court’s decision is reported in State vs Mohd. Afzal and Others, 2003 VII Apex Decisions (Delhi) 1, while that of the Supreme Court is at State (NCT of Delhi) vs Navjot Sandhu @ Afsan Guru (2005) 11 Supreme Court Cases 600. The Red Fort appeal is currently pending before the High Court, and the trial judgement is unreported. Both the unreported judgements are on file with the author. 115. State through Superintendent of Police, CBI/SIT vs Nalini and Others (1999) 5 Supreme Court Cases 253. Although Justice Thomas opposed the death sentence to accused Nalini, this was solely on the ground that as a helpless female she was led to commit the crimes. 116. Guvala China Venkatesu and Another vs State of Andhra Pradesh (All India Reporter 1991 Supreme Court 1926). 117. See Munawar Harun Shah vs State of Maharashtra (1983) 3 Supreme Court Cases 354. Also see Dayanidhi Bisoi vs State of Orissa (2003) 9 SCC 310, where the court rejected the possibility of rehabilitation as justification to not impose the death penalty, even though there was no evidence put forward by the State that there was no such possibility. Similarly, in Holiram Bordoloi vs State of Assam, 2005 Criminal Law Journal 2174, the Supreme Court observed that when questioned on sentencing in the Trial Court, the accused chose to remain silent and this proved that he had no repentance for the ghastly act he had committed. In Karan Singh vs State of Uttar Pradesh (Criminal Appeal Nos 326–327 of 2004 decided on 19 July 2005), the Supreme Court upheld the death sentence with no discussion whatsoever on the possibility of reform, even though the killings came in the backdrop of longstanding enmity, ostensibly due to some property dispute. 118. See Sri Mahendra Nath Das vs State of Assam (All India Reporter 1999 Supreme Court 1969), in which after committing the murder, the accused went to the police station with the bloody weapon and the severed head of the deceased and surrendered. In Bheru Singh vs State of Rajasthan (1994) 2 Supreme Court Cases 467, the Supreme Court upheld the death sentence of the accused who killed his wife and their children and after the murders went to the police station holding the bloodstained sword and lodged the ‘first information report’, virtually indicting himself. He also followed this up with a confession before a judicial magistrate. Similarly, in Jai Kumar vs State of Madhya Pradesh (All India Reporter 1999 Supreme Court 1860), the accused confessed to the murders in his statement made before the court but here, too, the court rejected this as a mitigating factor. 119. Bachan Singh vs State of Punjab. Ibid.


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120. The court hoped that ‘the appellant will learn a lesson and have opportunity to ponder over what he did curing the period he undergoes the life sentence’. Amit @ Ammu vs State of Maharashtra (2003) 8 Supreme Court Cases 93. 121. Ram Deo Chauhan vs State of Assam (2001) 5 Supreme Court Cases 714; Omprakash vs State of Uttaranchal 2003 Criminal Law Journal 483. 122. Section 357, CrPC. 123. See the recommendations made in the 152nd and 154th Reports of the Law Commission of India. 124. While Constitutional courts have been inclined to award compensation for losses on the principle of ‘culpable inaction’ by the State, this has been largely limited to cases of riots or other similar crashes and has not been a consistent pattern. See R. Gandhi vs Union of India and Sri Lakshmi Agencies vs Government of Andhra Pradesh for opposite position by the Madras and Andhra Pradesh High Courts, respectively. There have also been a large number of awards in cases of custodial deaths and other similar violent crime, but this has largely been limited to writ jurisdiction of the High Court and Supreme Court. See also general discussion in Muralidhar, S. 2004. ‘Rights of Victims in the Indian Criminal Justice System’, Journal of the National Human Rights Commission, 88. 125. See Palaniappa Gounder vs State of Tamil Nadu (All India Reporter 1977 Supreme Court 1323); Krishnaswamy Naicker vs State of Tamil Nadu (1980) Supplement 1 Supreme Court Cases 10. 126. Sarwan Singh and Ors vs State of Punjab MANU/SC/0163/1978. 127. Guruswamy vs State of Tamil Nadu (All India Reporter 1979 Supreme Court 1177). 128. Hari Singh vs Sukhbir Singh and Ors (1988) 4 Supreme Court Cases 551. 129. Pamula Saraswathi vs The State of Andhra Pradesh & Others (2003) 3 Supreme Court Cases 317. 130. See Balraj vs State of Uttar Pradesh, AIR 1995 Supreme Court 1935. 131. In Racchpal Singh vs State of Punjab, the High Court of Punjab directed that each of the two appellants pay Rs 2 lakh as compensation. On appeal by the accused, the Supreme Court reduced the amount payable to Rs 1 lakh per appellant (All India Reporter 2002 Supreme Court 2710). However, only a few months later, in Punjab vs Gurmej Singh, the Supreme Court only enhanced the fine of Rs 5,000 on each count awarded by the trial court to Rs 20,000 on each count (All India Reporter 2002 Supreme Court 2811). 132. Kamalanantha and Ors vs State of Tamil Nadu (2005) 5 Supreme Court Cases 194. In all, fines amounting to Rs 6,207,500 were directed to be recovered from the various accused. 133. (1994) 3 Supreme Court Cases 430. 134. State of MP vs Shyamsunder Trivedi and Ors (1995) 4 Supreme Court Cases 262. Curiously, while the State had been the appellant in this case, it did not press for punishment. In fact, the judgement noted: ‘The learned counsel for the State-appellant has very fairly submitted that though an adequate and exemplary sentence of imprisonment would have been normally called for the crime committed by them the respondents, may because of the lapse of time be sentenced to some imprisonment but they be also sentenced to pay a substantial amount of fine, which if realised may go to the heirs of the deceased.’ 135. State of Gujarat and Anr vs Hon’ble High Court of Gujarat (1998) 7 Supreme Court Cases 392. 136. As of 31 December 2003, 48,334 convicts were undergoing sentences for life imprisonment in jails in India. They form 52.7 per cent of the total number of convicts in the country. See National Crime Records Bureau, Prison Statistics 2003, Ministry of Home Affairs, New Delhi. This is the latest issue of the publication available. However, historically, prisoners undergoing life imprisonment have comprised approximately half the total population of convicts over the past decades. 137. Section 55, IPC, which is fairly similar to Section 433, CrPC, refers to commutation powers. Power to remit sentences can be found in Section 432, CrPC. While remission under Section 432, CrPC, requires an application to be made by the convict and also enables the Executive to seek the advice of the court, there is no such procedure laid down for commutation in both the CrPC and the IPC.

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138. In addition to this, there are also powers of commutation, remission and pardon vested in the President of India and the Governor of a state under Articles 72 and 161 of the Constitution of India, respectively. These are, however, not bound by the restrictions in Section 433A. 139. Murali, K. 2004. ‘Andhra Pradesh: Premature Release of Prisoners’, Economic and Political Weekly, 25 September. 140. In a meeting organised in Jaipur on 6 September 2003, Justice Shiv Kumar Sharma, a judge of the Rajasthan High Court and chairman of the Rajasthan State Legal Services Authority, discussed a case of an offender who was sentenced to life imprisonment for murder and for seven years rigorous imprisonment for destroying evidence. The sentencing judge inadvertently did not write that the sentences should run concurrently. As a result, he was not released even after having completed 15 years of imprisonment (as required in Rajasthan) as the legal experts of the Executive deducted seven years of the time served as that for the second sentence. See Commonwealth Human Rights Initiative, A Report on the Proceedings of Workshop on Prison Reforms in Rajasthan, September 2003, Delhi. 141. See Para 65, Maru Ram and Ors vs Union of India and Ors (All India Reporter 1980 Supreme Court 2147), where the Supreme Court records its indignation at remission being awarded on the occasion of the home minister’s visit to a particular jail, and so on. 142. See, for instance, Jharkhand’s guidelines in Jharkhand, (Volume 15) Criminal Justice India Series, NUJS and Allied Publishers, Kolkata, 2005, p. 319. 143. Some states such as Madhya Pradesh, Punjab and Uttar Pradesh have incorporated the procedure in their special laws while others have incorporated them in their rules or jail manuals. The system differed from state to state so far as the eligibility criteria for consideration for premature release, the composition of the Sentence Review Boards and the guidelines governing the question of premature release were concerned. See Annual Report 1999, National Human Rights Commission, New Delhi at http://www.nhrc.nic.in/ar99_00.htm, accessed on 3 May 2008. 144. The NHRC then lay down that each state had to have a Sentence Review Board, and even set out its composition. The Board was required to meet at least four times a year. After setting out the detailed minimum periods that different categories of prisoners required to serve, the NHRC also laid down a detailed procedure for the preparation of an information note for the Board. Unfortunately, the NHRC did not provide for any monitoring of the Boards and their functioning, citing a lack of computerisation and infrastructural and human resource support. This move has clearly led to some benefit in some states, including Bihar and Kerala. See ‘Sentence Review Board notified’, The Times of India, 11 December 2002 and ‘Prison Review Committee recast’, The Hindu, 20 April 2004. 145. Case No. 233/10/97–98 (FC) dated 26 September 2003. 146. Here again, the restrictions differ from state to state. For example, in Chhattisgarh, restrictions include those convicted under 16 different legislations and a number of other categories. See Chhattisgarh (Volume 19) Criminal Justice India Series, NUJS and Allied Publishers, Kolkata, 2005, p. 128. See also http://cgjail.nic.in/remission.htm, accessed on 3 May 2008. 147. State of Haryana vs Jai Singh (2003) 9 Supreme Court Cases 114. See also Sanaboina Satyanarayana vs Government of Andhra Pradesh and Ors (2003) 10 Supreme Court Cases 78. 148. State of Madhya Pradesh vs Mohan Singh (1995) 6 Supreme Court Cases 321. Interestingly, the Madhya Pradesh High Court had also found the provision discriminatory and had directed that the petitioner and all other prisoners should receive the same benefit. The Supreme Court noted that the power to grant remission lay with the State. If the power was improperly exercised, the High Court could quash the exercise. The Supreme Court noted that the High Court could not, in effect, grant a general remission where the State had intended it to be restricted. 149. Dalbir Singh and Others vs State of Punjab (1979) 3 Supreme Court Cases 745. 150. State of Maharashtra vs Manohar Kashinath Ghodake, 1982 Criminal Law Journal 600. 151. Madhav Shankar Sonawane vs State of Maharashtra, 1982(1) Bombay Crimes Reports 702.

Of Strong Medicine and Weak Stomachs 152. 153. 154. 155. 156. 157.

158.

159. 160. 161.

162.

163. 164. 165.

166. 167.

168.

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(2001) 4 Supreme Court Cases 458. Shri Bhagwan vs State of Rajasthan (2001) 6 Supreme Court Cases 296. Jayawant Dattatray Suryarao vs State of Maharashtra (2001) 10 Supreme Court Cases 109. Prakash Dhawal Khairnar (Patil) vs State of Maharashtra (2002) 2 Supreme Court Cases 35. Ram Anup Singh and Ors vs State of Bihar (2002) 6 Supreme Court Cases 686; Nazir Khan and Ors vs State of Delhi (2003) 8 Supreme Court Cases 461. See State (Govt. of NCT of Delhi) vs Prem Raj (2003) 7 Supreme Court Cases 121, Delhi Administration vs Madan Lal (2002) 6 Supreme Court Cases 77 and State of Punjab vs Kesar Singh, MANU/SC/0631/1996. In light of these unequivocal judgements, it is not clear how the Court has accorded itself the power to direct no premature release. Saibanna vs State of Karnataka (2005) 4 Supreme Court Cases 165. The court noted that the accused was already undergoing a life-term and had committed the second murder while on parole, and Section 427(2) did not allow a consecutive second life sentence. While it did not state so, it appears that the court did not consider 20 years’ imprisonment to be sufficient punishment and, therefore, awarded the death penalty. It remains unclear whether the case of Subhash Chander was brought to their attention and whether the court considered the possibility of a ‘life-for-life sentence’. Kamalanantha and Ors vs State of Tamil Nadu (2005) 5 Supreme Court Cases 194. State of Punjab vs Kulbir Singh and Anr, Criminal Appeal No. 81 of 2006, decided on 18 October 2006. Although placed under the broad heading of ‘alternative to the death penalty’, the Committee in fact recommended that the life-long version be added as an alternative ‘wherever imprisonment for life is one of the penalties prescribed under the IPC’, thereby allowing lifelong sentences to be awarded even in cases where there was no death penalty but life imprisonment was the maximum punishment. The Commission also specifically sought this lifelong version of the punishment for the offence of rape without specifying if this was to be an alternate sentence or a mandatory sentence. See Malimath Committee Report, pp. 175–76. See ‘Opposition to death sentence’, PUCL National Press Release, 6 October 1998, which argued: ‘Punish these offenders by all means by life sentences, declare them ineligible for remissions for a stated period.’ See also ‘With Death and the Hangman’, The Telegraph, 17 November 1998. While the former was in the context of the proposed death sentence for rape, the latter reflects the views of groups campaigning around the Rajiv Gandhi case. Gilani, Iftikar. 2005. My Days in Prison, New Delhi: Penguin Books; Banerjee, Sumanta. 2005. ‘Indian Jails: Turned Upside Down’, in Economic and Political Weekly, December 10. Aloke Nath Dutta and Ors vs State of West Bengal, Criminal Appeal Nos. 867–68 of 2005, judgement on 12 December 2006. (1998) 7 Supreme Court Cases 392. The decision does, however, need to be viewed in its context. This was not a case of actual sentencing in the court but where the Bench was examining the question of wages for work done by prisoners. As is well known, theorising in the courts does not directly or certainly lead to any particular influence on its decisions and judgements in particular cases. Furthermore, the Bench, too, was split and Justice D.P. Wadhwa voiced his objections, stating: ‘Reformative theory is certainly important but too much stress to my mind cannot be laid on it that basic tenets of punishments altogether vanish.’ Jai Kumar vs State of MP (1999) 5 Supreme Court Cases 1. Even the Malimath Committee accepts the primacy of certainty over severity: ‘What really acts as a deterrent is certainty of conviction and not the quantum of punishment that can be imposed’ (Page 193). Unfortunately, this Committee seeks certainty and is willing to sacrifice fair trial safeguards and issues of innocence in its almost fanatical desire for ‘increased convictions’. The Prevention of Heinous Crime and Barbarous Cruelty against Women Bill 2006 (Bill No. XXXIII of 2006) was introduced in the Rajya Sabha on 12 May 2006 by Sushma Swaraj, a BJP Member of Parliament. The Statement of Objects and Reasons observed that ‘heinous and barbarous cruelty against the girls and women needs to be prevented by providing capital punishment’.

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169. In fact, the use of the death penalty in India is an example of such an approach. It is awarded only to a minority or murderers and only a few people have been hanged in the previous decade. Yet this remains the mainstay of our armoury to frighten and thereby deter potential murderers. 170. Despite prison administration being one of the functionaries of the Criminal Justice System, it was even excluded from the mandate of the Malimath Committee. Furthermore, the various reports of the All India Jail Reform Committees are gathering dust, and there is hardly any initiative to address the varied problems in our custodial institutions. 171. Kameshwari, G. 2001. ‘Child as a Victim of Rape’. 2 Supreme Court Cases Journal Section 27. 172. Kannabiran, Kalpana. 2002. ‘A Ravished Justice: Half a Century of Judicial Discourse on Rape’, in Kannabiran, Kalpana and Vasanth Kannabiran (eds), De-Eroticizing Assault. Calcutta: Stree. See, in particular, the cases discussed in footnotes 172–77.

18 The Contexts of Criminology: A Brief Restatement Kalpana Kannabiran The essays in this volume have attempted to investigate the fields of criminal law and interrogate the fundamental assumptions of the rule of law in constructing criminality and fashioning its treatment by law. In this concluding essay, I will attempt to explore in a very cursory fashion some constitutive problems in the ways in which persons and communities are imagined in criminal law and criminology. Some of these issues have been inadequately theorised and used within the domains of criminal justice in India although they have been addressed by other disciplines, within their respective disciplinary protocols.1

COLONIALISM AND THE RULE OF LAW T.B. Macaulay remarked that in keeping with the prerogative of the conquerors of India to give codes of law to the conquered, the Indian Penal Code was the fulfillment of the British obligation to do the same—to complete the ritual of conquest.2 If the law as the state’s emissary, transforms real historical experience (in communities and families) into abstract legality3 in courts during colonial rule, the challenge we have before us is to restore the reality of that experience to the constitution of legality—in all its plurality (for instance, courts, commissions, tribunals, and panchayats), in post colonial India. The notion of plural legal traditions is central to an understanding of the rule of law. Baxi argues persuasively that the ‘disinclination to name community adjudication as law has distinctly colonial origins.... The demography of law in the formative period of the western legal tradition between the eleventh and the fifteenth centuries,’ he argues, ‘reveals a high density of folk law, manorial law, urban law, merchant law, canon law and Royal law’. The rise of positivistic jurisprudence which marked the

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appropriation of the law by the state (a symptom of ascendant capitalism and its ‘Siamese twin’ colonialism), effected a break with this history of pluralism and refused to acknowledge the possibility in the colonies as well, creating a hierarchy between authority and legality on one side and custom and public law on the other.4 The colonial underpinnings of positive law were tied closely to the institutional apparatuses of justice, with utilitarian norms determining the structure of the judicature. ‘[T]he constant reorganization of the “hegemonic judicature”’, Baxi argues, ‘was almost all the time moved by explicit considerations of promotion of revenue exactions, of that minimal degree of law and order which would make colonization safe for colonizers, and of abundant provisions for the “illegalities of rights” for the Indian elites which supported colonial governance. It was the declared policy of the colonial state…not to disturb the people’s law formations.’5 Clearly the structure of the hegemonic colonial judicature and public law alone does not adequately explain the history of criminal law in India. Besides introducing the notions of ‘person’ and ‘private property’, the law in the colonial context, anticipated popular disaffection against English rule and ruled against it. However, the manner in which resistance to these laws was crafted by the people, how this was interpreted by the colonial government and the resonances of that interpretation and resistance in contemporary India, will point to the understanding of a different method in the law and throw open possibilities of a counter colonial criminal jurisprudence. Ranajit Guha maps the trajectory of agrarian disturbances over 117 years, from 1783 to 1900 that ruptured the emergent colonial state again and again right till the end of the 19th century.6 The disturbances, Guha argues drew their logic from a negative class consciousness that identified the enemy—the nobility, the landed aristocracy and moneylenders, whose interests converged with the interests of the state. The disturbances were upheavals, in that they attempted an inversion of all dominant codes in waves of insurgent acts/actions—speech, dress, religion and assets. In these upheavals, insurgency in colonial terms was reduced to dacoity and crime, although the two derive from two very different codes of violence.7 The following passage about a legendary ‘bandit’ in Uttar Pradesh, by a police officer who effected his arrest is telling: Society demands protection against criminals, and Sultana was a criminal. He was tried under the law of the land, found guilty and executed. Nevertheless, I cannot withhold a great measure of admiration for the little man who set at nought the might of the Government for three long years, and who by his brave demeanour won the respect of those who guarded him in the condemned cell. I would have wished that justice had not demanded that Sultana be exhibited in manacles and leg-irons, and exposed to ridicule from those who trembled at the mere mention of his name while he was at liberty. I could also have wished that he had been given a more lenient sentence, for no other reason than that he had been branded a criminal at birth, and had not had a fair chance; that when power was in his hands, he had not oppressed the poor; that when I tracked him to the banyan tree he spared my life and the lives of my friends.

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And finally, that he went to his meeting with Fredy [Young, the commander of the Special Dacoity Police Force] not armed with a knife or a revolver, but with a water melon in his hands.8 This distinction between insurgency and crime that this passage speaks to (although it uses ‘criminal’ to describe Sultana) is one that criminal justice has lost sight of in India. A sharp increase in rural crime—most often a consequent to drought, hunger and increased poverty—usually inaugurated a rebellion. After a ‘dacoity’ involving the ‘looting’ of eight loaves of bread in famine stricken Gujarat at the turn of the century, …five Kolis, all skin and bone, were sent up on charges of dacoity for trial... ‘We had nothing to eat for three days in a row’, they said without any show of repentance whatsoever. ‘Our bellies were burning with hunger. Should we have come across all that food and not eaten it?’9 Dacoities of this kind were only one of the manifestations of rural violence—the others were brought under the offences of murder, theft, robbery, arson, hurt. On closer examination, Guha finds that the focus on class enemies—local elite, moneylender, colonial authority—and the concerted use of several forms of violence against one target, forces us to reckon with these as forms of militant collective action supported by the local population, rather than as isolated crimes. The object of the action was to overturn authority, not just to loot. Relevant at this point is the distinction between motive and intention in criminal law and the exclusion of motive precisely because it allowed for a contextualisation of the subject in his or her political environment. Because the poor and dispossessed could say their motive was need, or could claim they acted on right, Alan Norrie argues, motive represented a threat to law that must be excised.10 Colonial criminal law takes shape through a series of translations of claims for equitable distribution of food and resources into crime and the construction of claimants as criminals. In this scheme, resistance to gross inequality and dispossession was read as dacoity in a period of ascendant colonial capitalism. Further, the forging of networks of solidarity and kinship across the immediate boundaries of tribe, caste and gender in order to make this resistance more focused, better equipped and more concerted, were read as the submissiveness of Indians before the depredations of thugs and dacoits. After the rebellions of 1857–58, the British convicted a range of ‘ordinary criminals’—those sentenced for murder or armed gang robbery—to imprisonment in the penal settlement at Port Blair.11 Guha’s rebellious peasants convicted of dacoity and murder, who were not executed, could well have been part of this contingent of ordinary criminals. By the end of the 19th century, about 12,000 convicts lived on the island. Convicted criminals were steered towards a slow transition from convicts in chain gangs to Self Supporters who had after having served hard labour, attained a limited autonomy, and as free settlers were encouraged to marry women convicts and settle

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on the island. The object of the penal settlement, Satadru Sen argues, was to create a ‘social, political and physical order that conformed to the normative order of colonialism.’12 Work, medicine, surveillance and segregation were all deployed as instruments to achieve this object. Sen argues that in the absence of the basic premise of the modern state, which was the identification of the citizen-subject with the state, in colonial India, especially after the rebellions of 1857–58, it was imperative for the state to fashion a system which was conducive to policing—the policing of the recalcitrant subject by the colonial state and over time, through systems of rewards and punishments, the policing of subjects by subjects on behalf of the colonial authority—creating the limited identification that would strengthen the modern regime. Through the setting up of the penal settlement in the Andamans, the British attempted to build new bases for economic and political collaboration. The assassination of Lord Mayo, the Viceroy by a ‘decent’ convict, Shere Ali in 1872, who felt that killing a feuding enemy was no crime at all, and in his dying confession, the declaration that he was determined to kill ‘some European of high rank’ points to a different perspective even among the ordinary criminals incarcerated in the islands. And this was only one of several such attacks on senior officials in the Andamans.13 The conflict of interests between the centres of ascendant capitalism and the colonies played itself out in other fields as well. The changes in labour law that developed after the industrial revolution in Europe set limits to the enslavement of humans to technology.14 In the Siamese twin of industrial capitalism—colonialism, however, the Indian Factory Labour Commission of 1906 found that a 14 to 16 hour work day was widespread, as was the practice of overworking children.15 In other contexts of plantation based colonial capitalism, like South East Asia, ‘[g]ambling, opium, inhuman labour conditions, one-sided legislation, acquisition of tenancy rights belonging to the people, forced labour, were all in one way or another woven into the fabric of colonial ideology…’16 Rajnarayan Chandavarkar throws interesting light on the history of collective action by industrial workers and the criminalising of associational rights in colonial India. The infusion of the imminent possibility of violence in the workplace by employers, he argues, made it difficult for trade unions to entrench themselves in industrial relations throughout the colonial period.17 And yet, between 1908 and 1940, workers went on strike for periods ranging from a month to 18 months in Bombay, Calcutta, Nagpur, Sholapur, Coimbatore, that occurred without the initiative of an effective trade union.18 Questioning the evolutionary argument that the neighbourhood obstructed the working class from coming into its own, by tying them down with primordial ties that hampered the emergence of solidarity, he observes that ‘it was precisely within the social organization of the neighbourhood that the solidarities of collective action were forged and their informing ideologies shaped’. The neighbourhood in his view provided the space both for solidarities and contestations—the expression of contestations and rivalries that originated in the workplace.19


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Official discourse, predictably, was replete with accounts of volatility and militancy of the working classes that took no notice of the possibility that this was their only safeguard against sanctions and repression by employers. In fact these narratives were often coloured by the perceptions of policemen, propertied elites and employers. Ironically, Chandavarkar argues, a range of writings by Indian historians of postcolonial India, on the history of the working classes, echoes these interpretations, and in doing so unwittingly perhaps, reproduces the biases. While some put it down to India’s ‘hierarchical, pre-capitalist culture’, others have underscored the propensity/tendency of working class migrant communities—large and diffuse as the category is—to take easy resort to violence. Rural migrants, casual poor, the marginally employed sub-proletariat, factory hands, goondas, badmashes, the unorganised labour sector all faded into each other as did the distinctions between drug peddling, wage work and working in organised crime in the service of wealthy men and politicians.20 In general, these writings underscored the greater propensity for spontaneous violence by subaltern mobilisation—in stark contrast to elite mobilisation which was seen to be more ‘legalistic’, ‘constitutionalist’, ‘cautious’ and ‘controlled’.21 The same incidents therefore from different perspectives could be characterised as ‘street brawl’ or industrial violence, picketing or criminal intimidation, affray or riot. Colonial law was alive to the fact that disaffection towards the government—its personnel, installations and all things European—was a logical consequence of colonial rule. Criminal law addressed this prospect directly, with the focused object of disciplining the working classes (who were always in many ways in confrontation with the government), breaking resistance and repressing political movements.22 For instance the Commissioner of Bombay, Gell, commenting on the potential of the Tilak riots of 1908 wrote: If a combined movement against the Government can ever be effected, then we may expect that there will be organization, a leader, a common object, and there will be weapons, such as pickaxe, hatchets, crowbars, bludgeons, etc…. The object will be the destruction of Europeans, Government buildings, offices, the Railways, the tramways, the telegraph lines, etc., looting of shops, European for choice, and possibly the burning of mills belonging to Europeans. The area over which they will operate will be the 23 square miles of Bombay and the numbers engaged will be 50 or 60 thousand able-bodied millhands plus such of the population as are inimical to British rule.23 This volatility and violent resistance of the poor to colonial rule was by Guha’s account something that began in the middle of the 19th century—in fact before the enactment of the Penal Code.24 Was the Penal Code then structured to deal with disaffection because it had already tasted it?

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Interrogating the colonial foundations of postcolonial jurisprudence, Kannabiran persuasively points out that there was no fundamental transformation in legal regimes after independence, the concerns raised above with respect to the colonial period continuing well into the present.25 With respect to criminalisation of the workforce as well as criminalisation of popular protest against exploitation and unjust rule, while Guha opens out one track of narratives, Mahatma Gandhi’s statement at his trial can lead us to a new understanding of criminal law in Independent India: I came reluctantly to the conclusion that the British connection has made India more helpless than she ever was before, politically and economically…. No sophistry, no jugglery in figures can explain away the evidence that the skeletons in many villages present to the naked eye. I have no doubt whatsoever that both England and the town dwellers of India will have to answer…for this crime against humanity which is perhaps unequalled in history. The law itself in this country has been used to serve the foreign exploiter. My unbiased examination of the Punjab Martial Law cases has led me to believe that at least ninety five per cent of convictions were wholly bad. My experience of political cases in India leads me to the conclusion that in nine out of every ten the condemned men were totally innocent…. In ninety nine cases out of hundred, justice has been denied to Indians as against Europeans in the courts of India. This is not an exaggerated picture. It is the experience of almost every Indian who has had anything to do with such cases. In my opinion, the administration of the law is thus prostituted consciously or unconsciously for the benefit of the exploiter.26

REVISITING THE PROBLEM OF PROSTITUTION The debates on prostitution in India and the problems with the application of criminal law began in the late 19th century with the use of Sections 372 and 373 of the Indian Penal Code to imprison women for procuring minor girls for prostitution using the ceremony of adoption and dedication. The practice at the centre of these debates was the dedication of devadasis to temple service. We can trace the trajectory of contemporary debates on prostitution in India to earlier debates in colonial courts and outside on the use of criminal law, property law and citizenship rights. The question of prostitution, when it came up for debate in the context of social reform and devadasi abolition in colonial India, was already connected to Josephine Butler’s campaign around the Contagious Diseases Act and to the Social Purity Movement.27 Indian reformers, pro abolitionists and anti-abolitionists set forth complex arguments on the place of prostitution in an emergent social order, especially on whether it was coeval with progress and modernity and whether it was consistent with the goals of nationalism and freedom. Simultaneously, courts, especially in the Madras Presidency were deliberating on what constituted ‘evidence’ of prostitution—can it be


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concluded, for instance, that evidence of the ceremony of adoption could lead to the inference of prostitution, Abbe Dubois having put the matter beyond historical doubt in his compendium on Hindu ceremonies?28 An even more basic question: Was the government or the judiciary in a position to infer that the devadasi was a prostitute? When the inference was made, Indian judges asserted that even prostitutes had civil rights.29 These official debates were animated by movements, for and against abolition. The question of rights to citizenship and civil rights came sharply into focus in the context of freedom struggle.30 Being women who already inhabited the public domain and were familiar with its protocols, women who had already been confronted with the repressive might of the colonial state, many devadasis were leaders known for their oratory skills. But devadasi women entering public-political spaces alongside ‘respectable’ women created a crisis of sorts because men, it appears from accounts of the period, flocked to meetings where ‘slipped sisters’ were scheduled to speak—in fact, discussions in the press spoke about the tendency among men to assume that only ‘slipped sisters’ could participate in public functions in public places and sing the national anthem.31 Consequent to participation, questions arose about the extent of segregation that was necessary in order to ensure that ‘respectable’ people would not be sullied by contact. Could children of prostitutes be together in the same schools with children from ‘respectable’ families?32 Should devadasis be seated separately in meetings that demanded freedom from colonial rule? If they courted arrest, could they lay a legitimate claim to the privileges of political prisoners or were they to be treated as prostitutes?33 Later still in the mid 20th century, women in the Telangana Armed Struggle were campaigning against the devadasi system as a form of bondage and feudal servitude that was sexually exploitative of dalit women.34 Clearly the question of prostitution is not one that can be looked at in isolation, in one country/ region alone. Especially today, the connections between prostitution and international trafficking in women and children are central to human rights debates and activism.35 The World Charter for Prostitutes’ Rights speaks of decriminalisation, the granting of full citizenship rights and recognition, humane conditions of work, freedom of association and the right to healthcare access and services.36 There has been considerable work in India on various aspects of the prostitution debate that have examined decriminalisation, partial decriminalisation, sex work, legalisation, trafficking and rights of women in prostitution, to name a few.37 Cases that have forced scrutiny of custodial facilities for women, especially in the matter of protective homes for women and girls under the Suppression of Immoral Traffic in Women and Girls Act 1956 point to chronic sickness, mental illness, communicable diseases and inhuman conditions in these homes and the complete absence of other livelihood options, all manifestations of the recriminalisation/revictimisation of women in prostitution by the state.38 Prajwala in Andhra Pradesh has filed a public interest litigation in the Supreme Court of India seeking victim protection protocols that will ensure that women are not re-trafficked.39

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The debates on prostitution in India range from seeing it as sex work—another form of labour— to a systemic victimisation of women (and children) that must be eliminated, by stages if necessary. Across these widely divergent positions, however, there is a unanimity about the need to protect women in prostitution from a repressive state that uses a range of laws—not just the Immoral Traffic Prevention Act—bolstered by raw police arbitrariness and custodial abuse in order to subjugate them.

THE FAMILY The family is a ‘foundational’ institution in societies—an institution, which is a site of identity, emotion, cultural expression, care, despair, reproductive labour, systemic and systematic violence, repression, and domination in ways that other institutions are not. It is also foundational as contestations over life and culture begin here. In modern India, its position has been central and critical in ways that make it stand apart from other (notably ‘western’) societies—both in practice and discourse. The family has not just been critical to social life in India, but to discourses on modernity, ranging from colonisation and social reform in the late 19th century to feminism and human rights in the early twenty first century. So there is a cord that has bound the practice to the discourse. But both the practice and the discourse draw on plural legalities—particularly the bifurcation between tradition-and-custom and public law (criminal, civil, constitutional) to assert the primacy of one or the other even while keeping the structure intact. Contemporary social movements have underscored the subservience of nurturance to hierarchies of gender in family-households in India—female infanticide, denial of food and education, sex selective abortion, domestic violence and wife murder (sati only one form) being persistent, troubling realities that movements must contend with. Formal law in its very enactment responds directly to these concerns of movements, and yet in its operation, draws on discourses of nurturance and emotion, even if that undermines the rights enshrined in the enactment, reflecting a complete dissociation between historical and ideological contexts and seemingly discrete occurrences. The complex location of the family necessitates a more nuanced understanding in the law that draws on a plurality of disciplinary discourses. For instance, the recent legislation on domestic violence draws on the findings and experiences of contemporary social movements; the large scale abortion of female fetuse is seen as a ‘social evil’, (a quaintly 19th century formulation) that indicates ‘son preference’, whereas in terms of scale for proposed legislation it falls squarely under the Crimes Against Humanity provisions in the field of international law, while female infanticide brings the problem under the Child Rights Convention.


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Women in the late 19th and early 20th century—Tarabai Shinde, Muthulakshmi Reddi, Pandita Ramabai, Rukmabai, Muvalur Ramamirthammal, Kandukuri Rajyalakshmi, and so many more—interrogated the basis of the family in fundamental ways challenging practices of violence and forcing a greater public scrutiny of the institution, by a government that was building collaborations with elite men in dominant communities.40 While Tarabai’s Stree Purusha Tulana forms the basis of today’s demand for equal rights by women,41 Rukmabai hit at the basis of inequality in the family by refusing to go with her husband even if it meant courting arrest, challenging in the process the forced restitution of conjugal rights for a marriage in which her consent was taken in her minority.42 Resistance against an oppressive family, for women like Rukmabai, meant making a choice between custody by the family and state custody. This dual resonance of custody and its nexus with choice continues to make the fundamental right to personal liberty disappear from women’s citizenship through the present time. Practices around reproduction—abortion, injuries to unborn children, causing the death of a woman in an attempt to abort, preventing a live birth or causing the death of a child after birth, the abandonment of children below 12 years of age—have been addressed by sections 312–318 of the Indian Penal Code.43 Although the terms of the section are gender neutral, the contexts in which these offences are located—those addressed by Pandita Ramabai and Tarabai Shinde—indicate unambiguously that these are practices that are specific to either girl children or to abortions in the context of enforced widowhood, coded as it is by caste and inequality.44 Haimabati Sen, born in 1866 and widowed in 1876, travelling through the pain of a pre-pubertal marriage with a debauched husband, widowhood as a child, searching for release through education, remarriage and reform, finding that none of these really offered any space for her spirit, having to fight every inch of her journey till she finally set up practice as a lady doctor, wrote her memoirs, which provide a gripping account of what it meant to be a Hindu child-wife/widow in the late 19th, early 20th century: ‘I was but a mere child and I had already relieved my parents of all their responsibilities for me and become a slave dependent for my sustenance on my husband’s elder brothers. I had to learn to accept the fact that at this tender age I would be a slave to other people’s whims for a handful of rice.’45 This observation also problematises the continuing contestations around women’s claims to maintenance under Section 125 Criminal Procedure Code. It is these, in fact, that constitute the genealogies of justice for women, histories that are absent from the telling of justice by courts in India, notably through the rhetorical de-criminalisation of all matters that concern ‘family life’ taking recourse to essentialised notions of ‘tradition’, unmindful of Ambedkar’s argument that it is necessary for courts to choose which parts of our ‘tradition’ are worthy of repetition and thereby validation and transmission.46 The interlocking of gender and generation in the Indian Penal Code with respect to the criminalisation of the adoption of female children by devadasis raises a series of questions in relation

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to women’s dispossession from control over material and professional assets in kinship systems through the medium of criminal law.47 Critically tied to both is the question of authority and control over family resources. This materiality takes on specific forms in the matter of children. Increasingly rights literature brings to light the troubling fact of the violent appropriation not just of children’s labour but also their sexuality, both within the family and without. While family agency and complicity then are matters of concern, the inability of the family to provide protection against abuse by third parties is yet another fault line that can scarcely be ignored. The emphasis on nurturance to the exclusion of all other patterns of relationship, notably power, shields the family from critical and necessary scrutiny, that even today provides innumerable instances of resistance as we have indeed witnessed in the era of reform. Marital rape is not a criminal offence,48 although in a twist, it has been brought within the meaning of domestic violence in the Protection of Women from Domestic Violence Act, 2005.49 Honour crimes are a cultural expression of the convergence between the patriarchal, heterosexual family and law. The regulation of women’s sexuality is a matter of culture and the medium of regulation is violence, ranging from forced marriage to honour killings, offences which reify the fact that the family must be a site of reproductive sexuality for communities and must maintain law and order within communities and by that token in society. Case law around writ jurisdiction, especially habeas corpus, demonstrates the convergence between domestic violence and custodial violence, where the threat of detention and custodial violence marks the alliance between policing practices of the family and the state and raises issues of citizenship in the domestic sphere.50 Pratiksha Baxi contends that the writ of habeas corpus, although discussed widely in relation to custodial violence and state repression in human rights discourse, has not received adequate attention in terms of its routine use in courts in cases of ‘choice marriages’ (as opposed to arranged marriages). Adult women have used it to challenge their own detention in state facilities; parents have used it to ‘recover’ adult daughters who have married by choice; husbands of newly married girls have used it to claim them from their natal families that refuse to recognise the marriage; couples seek protection against possible arrest and detention on charges of abduction/rape. Writ jurisdiction, she observes, ‘comes to detail contestation over the legality of the detention of a woman who is described by her family as a subject who has been abducted for the purpose of illicit sex or forcible marriage, and by the affinal family as a consenting subject.’51 [Emphasis added] The multiple axes along which women are subjugated through interacting regulatory techniques that travel back and forth between state and community—between courts and panchayats, between statutory village panchayats and caste panchayats—is most evident, in the case of marriages by choice.52 Criminology in India must interrogate the ideology of the family in law in different cultural contexts in India, in order to take note of the specificities in the derogation of the right to life and livelihood and the practices of violence in the family.


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THE QUESTION OF CUSTODY AND STATE VIOLENCE Human rights debates in India around civil and political rights have more often than not centred on arbitrary arrest, extra judicial murder, torture in custody, the extraction of forced confessions, and re-victimisation by the police especially of poor and vulnerable groups. Tracing the history of the police during colonial rule, David Arnold observes that, the police in its incipient phase in colonial India did not exercise the kind of untrammeled powers that their contemporaries had in Europe. Yet, he argues, gradually by 1947, …a Police Raj of a kind had come into being, a regime in which the police occupied a crucial position in the ordering of rural and urban society, in the suppression of political opposition, and in the maintenance of state and class control.53 This elevation of the police to a position of primary importance had more to do with the political situation—the Swadeshi Movement, Non Cooperation, Civil Disobedience Movement, labour unrest, peasant movements led by the communists—than with the rise of professionalism in the force. In terms of its internal structure, the police system was expressly created to subserve the needs of the colonial state, which meant that it would use its coercive strength with the guarantee of immunity from prosecution, and could use violence to an extent unacceptable in England. These coercive functions were further entrenched through the development of an armed, paramilitary section within the police system. This entire apparatus, Arnold points out, was used to protect the interests of the propertied classes creating a ‘subaltern bitterness’ which led to spiralling levels of violence and counter violence.54 Baxi, drawing on reports of various state police commissions and scholarly studies, points out that Independence has not made a substantial difference to the organisation or functioning of the police. Drawing a distinction between a status quo orientation of the police, which is a predictable trend everywhere, and the colonial repressive tradition of policing, he observes that: the latter emerges when the governing elites of a decolonized society maintain its inherited police organization, ignoring justified demands for change, and refusing to adapt it to the needs and aspirations of an independent, free society.55 K.G. Kannabiran locates the reasons for this failure in the fundamental character of our political transition, which, he argues, did not and could never have triggered a social revolution: Our political struggle retained with total composure the entire colonial legal system which had been effectively used against the freedom struggle at various stages…[W]e did not…repeal… various laws which cannot operate in a sovereign democratic socialist republic, and which have

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no moral and political claim to continuance because they were statutes used against the people and their leaders…like the Criminal Law Amendment Act 1908 and 1932 and the Prevention of Seditious Meetings Act, 1917, to mention only the notorious ones.56 Against this backdrop, Madhava Menon identifies specific practices associated with the police that predominate public consciousness in India, and points to perceptions of the police as being predominantly law breakers—working in concert with ‘anti social elements’, exhibiting a contempt for courts and human rights, indulging in corruption, deliberately disregarding norms of accountability and procedure—exhibiting insensitivity towards victims of crime and ‘showing a leniency towards fundamentalists and terrorists.’57 Further, he observes: What is disconcerting today is the steady deterioration of standards of policing, the increasing lawlessness amongst the policemen themselves and the attitude of complacency and complicity amongst the leadership in police organisations. Given the prevailing attitudes and approaches in the police force, there is not much hope that the people will get better services from the police in the immediate future.58 Over the past 45 years, various commissions in the country have indicted the police for laxity, negligence and complicity in the perpetration of mass crimes. When riots broke out in 1961 in Jabalpur, Sagar, Damoh and Narasinghapur, ‘the intelligence department...[was] entirely inefficient and the law and order authorities were responsible for laxity in investigation and prosecution which resulted in large [number of ] acquittals’.59 In the riots of Ranchi, Solapur, Malegaon, Ahmednagar, Sursand, Jaipur and Suchetpur in 1967 the inquiry found ‘that either there was no police force to deal with the mischief makers or it had no directions to act’.60 In 1969 in Ahmedabad, the law enforcement agencies were passive, even though they ‘could not but have known that the communal atmosphere had become tense’.61 In Bhiwandi, Jalgaon and Mahad in 1970 it was found that: policemen either did not prevent Hindu rioters from indulging in rioting, looting and arson or showed communal discrimination in dealing with the rioting mobs, or gave incorrect information to the control rooms, or lodged incorrect FIRs [First Information Reports] in order to make out that the persons who were responsible for looting and arson were Muslims, not Hindus, or to assist Hindu rioters in burning and looting Muslim properties.... The working of the Special Investigation Squad is a study in communal discrimination. The officers of the squad systematically set about implicating Muslims and exculpating Hindus irrespective of whether they were innocent or guilty.62 The Deputy Superintendent of Police, Tellichery testified before the Justice Vithyatlul Commission of Inquiry in 1971, that his rank and file were infected by the virus of communalism and


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would keep yelling at every Muslim they encountered on the road to go to Pakistan.63 This is a trend that is reported in all subsequent investigations into communal riots and has been acknowledged in the Sixth Report of the National Police Commission and by the National Integration Council.64 Inquiries into the Anti-Sikh riots in Delhi in 1984, the Mumbai riots in 1992 and Gujarat in 2002 have spoken of the complicity of the police in the perpetration of mass crime in alarming ways and yet, in the face of grave accusations of the commission of mass crime, impunity (the first observation in Menon’s list above) continues to be guaranteed to the agency entrusted with the enforcement of law and order. If targeted violence against minorities is one situation in which the police force in India has come under a cloud, violence against political dissenters (including sympathisers and family members of dissenters) is another major concern. Unlike in the former case, in the latter, it is not inertia or tacit support or inaction that defines the role of the police. It is perpetration of mass crimes against political activists. The first major reports came from Andhra as part of the findings of the Tarkunde Committee and the Bhargava Commission of Inquiry that investigated police excesses during the Emergency in 1975–77. From 1984 to 1996, official reports say that 15,000 people— several human rights activists and lawyers among them—were killed by the Punjab Police. Independent investigations by human rights groups put the figure at 25,000. This includes persons ‘missing’ from their homes, killed in ‘encounters’, cremated as ‘unidentified’ and ‘escaped from police custody’.65 Although the number of casualties has declined since 1996, there have been no prosecutions of police officers responsible for mass murder and torture in illegal custody. Fake encounters and the nexus between the police and mercenary musclemen continue to crush any opposition to the use of force in Punjab.66 The case of Budhan Sabar raises questions about the disjuncture between protection for vulnerable groups under the law—in this case, the Scheduled Castes/Schedules Tribes (Prevention of Atrocities) Act, 1989—and the arbitrary derogation of the right to life and liberty of people from these groups by the police. This is a trend observed by Arun Shourie as early as 1980, when he found that of the 45 deaths that had occurred in police custody in seven states, the victims were invariably poor and where formally arrested were charged with petty offences. Although their bodies bore marks of torture, the cause of death was ‘snake bite’, ‘heart failure on way to hospital’, or suicide. In cases of suicide, Shourie found the most common method being hanging inside a lockup with the help of a lungi or belt.67 Eighteen years later, this was still the painful story of Budhan Sabar. On 10.02.98 at 4 p.m., Budhan Sabar and his wife Shyamali Sabar were going to visit a relative in Barabazar P.S. area on a bicycle. As they were buying ‘paan’, Ashok Roy, D.C. Barabazar picked Budhan up on a motorcycle and took him to Barabazar Police Station. Barabazar P.S. recorded the date of his arrest as 11.02.98, though his wife’s appeal to the same P.S. mentioned the date as 10.02.98. Budhan was brutally beaten, denied food and water till 12.02.98 morning.

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On 13.02.98 early morning the S.P.; the D.S.P. (Headquarters); the O.C., Kenda; the D.C. of Barabazar; searched Akarbaid village for supposedly stolen goods. All the time Budhan was in a jeep. The villagers saw and talked to him. On 12.02.98 Barabazar O.C. produced Budhan at Purulia Court and took him back for further enquiries. On 16.02.98 Barabazar P.S. handed over Budhan over to Court and he was sent to jail custody. On 12.02.98 Sreedhar Sabar of Fatehpur village under Barabazar P.S. was summarily arrested at midnight and on 13.02.98 brought him to Barabazar P.S. He found Budhan groaning and saying he was being beaten non-stop. On 13.02.98 Sreedhar was produced at Purulia Court at 5 p.m. and he was sent to jail custody. On 16.02.98 Monday evening Sreedhar saw Budhan being dragged to jail. Budhan told Sreedhar that from 13.02.98–16.02.98 he has been further tortured. In fact, he could neither walk, nor talk properly. Budhan was put in a cell within other prisoners. On 17.02.98, after roll-call Sreedhar was asked to distribute tiffin, and go to gate. Budhan was asked to sweep the yard. Suddenly Sreedhar heared Budhan screaming, ‘Save me’. Sreedhar ran and found Budhan lying on the ground. A jamadar (jail police rank), with 3 ‘V’ marks on his uniform was beating Budhan with a stick. The jail police did not allow other prisoners to help Budhan. Then 3-4 U.T. prisoners dragged Budhan and put him on the floor of degree cell No. 2 of No. 12 Ward. Sreedhar went to serve him milk but found him lying still. The jail police sent him and other inmates in the cell and locked it up. Budhan, immobile still, lay in a solitary lock-up cell. Budhan did not come for midday meal. In the evening it was said that Budhan hanged himself with his ‘gamchha’ or country-towel. According to Budhan’s wife, he did not have a gamchha with him on 10.02.98. According to Sreedhar Budhan did not have one either on 10.02.98 at Barabazar P.S., or 16th evening at Purulia Jail.68 According to the petition, Asoke Roy, the police officer who arrested Budhan, was responsible for killing Sabars, torturing them and framing false cases against them ‘just because Kheria-Sabars are a denotified primitive sub-tribe’.69 In his entry in the General Diary pertaining to the arrest of Budhan Sabar, Roy wrote: I interrogated accused Budhan Sabar thoroughly when he voluntarily disclosed that he along with Jagan Sabar, Kalipada Sabar, Paru Kirtan Sabar and others of one Akarbaid and neighbouring villages had committed dacoity at Balaji Bus about five months ago and sold the stolen articles [to] Kalipada Pramanick, Kartick Pramanick and others of Akarbaid.70 [Emphasis added] While the significance of this case lies in its positive outcome in favour of a victim of custodial violence, what must be kept in mind is the vulnerability of marginalised groups to arbitrary arrest and torture, resonating their experience under the colonial administration. Even by Roy’s own


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admission, the people he apprehended on suspicion of having committed dacoity are all members of an extremely impoverished denotified tribe—the Kheria Sabar. In the face of this violence, it is only collective mobilisation and the exercise of associational rights that enables justice—the Sabars contacted their leader, noted writer Mahasweta Devi, who then petitioned the court on behalf of the Paschim Banga Kheria Sabar Kalyan Samity. The inversion in the definition of crime—from dacoity on the part of a denotified tribe to custodial torture and murder on the part of officers of the state—and the securing of appropriate relief is enabled through the exercise of associational rights. This also foregrounds the mechanisms for transparency, accountability and justice that have been put in place by struggles for civil liberties in India over three decades. Custodial violence takes on gruesome meanings for women. Piloo, arrested on the charge of ‘awara gardi’ (vagrancy) under Section 169 of the Indian Penal Code for vagrancy, could not have been more than sixteen years old. She stayed in jail for a few weeks and then got out on bail provided for her by a constable in return for a spell as his mistress. This was a normal procedure. Single wardens or policemen would offer to stand bail for young destitute girls in return for temporary or long-term cohabitation. Meena, brought to India from Nepal by a Brahmin, was abandoned. She was sentenced to seven days in jail for vagrancy. She arrived (in Hissar Jail) in a fearful state, delirious, unable to walk, her rectum and vaginal area torn and bleeding. She had been kept in police custody for twenty two days after her arrest. Five or six policemen had raped her everyday. Practically deranged by this experience, she was then handed over to the jail authorities.71 Among the most shocking custodial deaths, was the killing of ‘dacoit queen’ Haseena Begum. She was pregnant when she was gunned down after she had surrendered to the police and was taken into custody. The police paraded her naked corpse through the village as a lesson for others.72 While torture in custody is always a violation of human dignity and bodily integrity, desecration of the body of the victim of state violence remains unaddressed in law as also the degrading of the dead female body, through the sexualised spectacle.73 Writing on corpse desecration, Martha Nussbaum observes that: [w]e view these wrongs as grave wrongs primarily on account of the harm they cause to relatives and loved ones of the deceased. The corpse is the property of the living, and it is an especially valuable and intimate type of property, like a precious sentimental or religious artifact. Where the dead person is without relatives or friends, we view necrophilia as an insult to the life of the person that was, and as an assault on religious or personal meanings that the state, by taking the person’s corpse as its property, undertakes to protect from desecration.74 The case recounted above and countless other cases especially of collective violence and state violence foreground the relationship between necrophilia and state violence—the practice of necrophilia as a form of state violence—which has been relatively unexplored in criminal law.75 Ranging from

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practices of mass cremations of victims of extra judicial murder without the consent or knowledge of families and in disregard of funereal customs to more stark public desecration of bodies of victims of custodial violence, the persistent practice of necrophilia by the state has not entered an account of the meanings and forms of state violence. While the motive behind such desecration is to cause harm to the community and instill terror, the harm thus caused does not enter into the account of assessing the gravity of the offence. Criminal law in India therefore in a reductionist mode, might convict for custodial murder but not for the aggravated act of necrophilia, neither can communities claim reparations for the desecration of their dead by the state.

COLLECTIVE VIOLENCE, HUMAN RIGHTS AND JUSTICE ‘State is the name of the coldest of all cold monsters. Coldly, it tells lies, too; and this lie grows out of its mouth. “I, the state, am the people.”’ Nietzsche’s words ring chillingly true today. 1984, Dangs, POTA, Gujarat, Sikhs, Muslims, Christians, Dalits, Kashmir, Manipur, Narmada.... Collective violence has a long and troubled history in India. Thanks to the globalisation of the mass media, especially television, in the very process of producing the spectacle of suffering in these and countless other cases, according to Baxi, the mass media erases the possibility of any structural understanding of suffering.76 There are lessons to be learnt from each and every struggle. Human rights and civil liberties struggles in India have taught us how we can use institutions of justice, the courts especially, creatively, to wrest political rights from an unwilling state in a democracy and have also taught us important and valuable lessons in enforcing accountability on the state and its agencies. Women’s movements, Dalit struggles and struggles of tribal peoples have demonstrated to us the power of biographies of those who have suffered/survived violence in its most extreme, persistent, pervasive forms, making these testimonies of suffering social texts that become tools for change. Take for instance Sulochana’s testimony on the massacre of dalits by Kammas in Karamchedu in 1985: My name is Sulochana. At that time I was about 13 or 14 years old. I am now telling you about a problem that arose 19 years ago. We were from Karamchedu. We are madigas. I had been married six months at the time. This was in 1985. The day was July 16. At about 3 or 4 o’ clock, I went towards the drinking water pond in the madiga palle. Seenu, bathed his calf, drew water from the pond and fixed the fodder for his calf. Then he washed the bucket and threw the water back over the steps into the pond. Seeing this Kunti Chandraiah asked him, Ayya, why are you washing the bucket into the pond? Seenu abused Chandraiah, you madiga fellow, who are you to ask me to wash the bucket outside the pond? And he kicked him. Seeing this, Suvartha who


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had come to draw water, asked why he was kicking Chandraiah. He was furious. Who are you madiga whore to say anything to me, and he raised his foot. Suvartha blocked it with her water pot and he grazed himself with his watch in the scuffle, causing a minor bruise. He then went into the village yelling, ‘I am bleeding because a madiga whore hit me….’ I went to the canal to wash clothes at 6 in the morning. At the kalva people were saying, ‘there! they are descending on the madiga palle.’… We all ran together toward the fields. There is a small hillock there. From the top we could see the entire village. All of us turned back and looked at the village. There were people running and people chasing them armed with spears, knives and axes. On the side of the Karamchedu-Chirala road, some people were chasing the crowd in tractors and motorcycles. Around us at a distance we could see four or five groups of people—each group had twenty to twenty five men surrounding one person and attacking him with weapons. I later learnt that my husband was killed by one of these groups. We did not know where to go…. Behind us, the attackers chased our people, and killing anyone they got hold of, they reached us. Seeing this we scattered in different directions. Three of four kammas ran towards me. They had huge sticks in their hands. They chased me and attacked me with the sticks. I kept getting thrown up and down with their blows. When I tried to raise my head after a fall, I got a blow on my forehead. Streams of blood flowed down my face and clothes. I lost consciousness. They abused me, and asked me what my family name was. Then they brought the other five women who were with me and made us stand in one place. One of the men said, lets put dried leaves and twigs and set fire to them. One went to fetch the twigs while the others asked each other for matches. Nobody had matches. While this was happening, they suddenly saw some of our men at a distance. They left two men to guard us and went off chasing those men. The men who were guarding us said, ‘this is not the way. We should take these whores to our women and ask them to kill them and throw them into the canal’. They then drove us towards the village, abusing us all the way, showing us the bodies on the way and telling us who was killed where. Tella Muthayya was hanging half inside and half outside the canal. Those behind us said, this fellow too has gone, and kept moving. Ahead some people were attacking Tella Moshe. They had stuck a spear into his stomach and were turning it. We neared the village. Seeing the police on the banks of the lake, the men behind us ran away…. After many years I was told that the case had been dismissed. Our elders told us that the judge in the High Court was not convinced of the facts and had dismissed the case.77 Bama offers us an incisive analysis of the experience of dalit women through her autobiographical account in Karukku: Wherever you look…caste discrimination stalks us at every nook and corner and drives us into a frenzy…. Because Dalits have been enslaved for generation upon generation…they have reached a stage where they themselves, voluntarily hold themselves apart. This is the worst injustice.78

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Cases of aggravated assault are many. In Chunduru in Andhra Pradesh in 1991, eight dalits were massacred and thrown into the canal by the landowning Reddis of the village.79 The lynching of dalits in Jhajjar, Haryana in 2002 and the guarantee of impunity in both these incidents which are eleven years apart, underscores the use of violence as a foundational element in caste. The defence in Chunduru was not the plea of ‘not guilty’ alone but also that the victims were Christians and hence the killing could not be read as atrocity. In Jhajjar, the repeated assertion by officials was that since it was a matter of cows, the mobs mistook the five men for Muslims,80 an ‘error’ that is officially seen as a mitigating factor.81 This normalisation of aggravated assault marks gender, caste, community and bodies in inescapable ways. It is this constant re-creation of the normal that ties up the experience of untouchability with the experience of women in the caste system. On a more general level, however, the tangible impact of the law and constitutional safeguards in protecting dalit people has been negligible. This is so, not because the laws are inadequate but because of the constitution of the criminal justice system in India, which has historically used ‘jurisprudential trapeze acts’82 to write structural violence out of the realm of crime. The only recourse left then for dalit groups is to articulate the problem in terms of an international understanding of segregation and apartheid in the context of racism, making a discursive leap forward and forcing the gaze of the international human rights community on institutionalised discrimination that is particular in form but not in content.83 The denial of basic rights, the realities of exploitation and subjugation through the use of violence obliterates the distinction between peacetime and war for entire populations that suffer from and live in this environment. Yet international law makes a doctrinal distinction between the international law of war and peace, reserving languages of pain and suffering for the development of international humanitarian law, while invisibilising them in times of peace, ‘even when “peace” appears to millions of people as forms of belligerency by other means.’84 Recognising and contending with the fact of distinct regimes within ‘human rights’, each with its own discursive formations and definitions of what constitutes a violation, has been a critical part of human rights movements as also the transgression of the boundaries of these distinct regimes and these definitions. Domestic violence and starvation induce terror and by virtue of this blurring, coexist as violations alongside torture, leaving the fundamental question unanswered: Who are the terrorists? Hannah Arendt, writing in the aftermath of the Holocaust (The Human Condition 1958), spoke of radical evil as a ‘structural element in the realm of human affairs’ in which human beings ‘are unable to forgive what they cannot punish and...unable to punish what has turned out to be unforgivable.’85 For Baxi, radical evil ‘is the imposition of suffering beyond redress, remorse and rights, and even recall,’ leading to an organised moral amnesia, which undermines the very foundations of human rights.86 The return to ‘normalcy’ that characterises the governance, by polities in the aftermath of holocaustian violence, stands in stark contrast to the persisting memories of


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loss and bearing witness to violation that steers governance by communities. Through a strategy of deferral of promises of justice, the state dissipates demands for reparations and justice, which are then negated by courts, wiping out any collective memory or recall of violence outside the communities that have suffered them. All those Sikhs who were killed on the streets of Delhi in 1984 are forgotten. The families that witnessed the violence are told that they did not see, because what they saw did not happen. The assertion of memories of loss and the demand for justice then, must take on forms that are as stark as the violation itself, in order to force a dialogue, to deliberate on strategies for restoration—the protest by the Meira Paibis in Manipur against the sexual assault and murder of Thangjam Manorama by the army, and the six year hunger strike by Irom Sharmila Chanu are examples. ‘The struggle of man against power’, Milan Kundera said, ‘is the struggle of memory against forgetting’.87 This finally brings us to the question of the interdependence of human rights, which very simply is that the same order of rights inhere in each person. In an age when identities are fluid and multiply at an alarming pace, when cultural spaces and indeed the nation itself is shrinking through increasing exclusion even while it expands through globalisation, when the only precarious road to survival often is community ghettoisation, we need to remind ourselves constantly of the non-negotiability of basic rights and just governance in each of our contexts.

‘WHAT IS TO BE DONE?’ The widespread and diverse human rights struggles in India have not had much impact on the basic tenets of criminology. Particularly where we are dealing with a situation in which multiple forms of discrimination intersect producing a powerlessness that increases vulnerability to violence and violation, and special legislations in some instances recognise these sources of violence,88 a consideration of discrimination is indispensable to the theorising of criminal justice. While there are writings on the need to unpack received notions of crime and criminal justice, we are still to witness a general acceptance of counter colonial perspectives in legal pedagogy and research. Biko Agozino posits the hypothesis that criminology is concentrated in former colonising countries and virtually absent in former colonised countries, because it is a social science that served colonialism more directly than any other.89 The historical experience of the Third World, he argues, will help us map the field of criminology afresh—if we were to look at the Indian experience, this would mean looking at the crimes of indentureship, colonialism and neocolonialism, and for the present looking closely at human rights crimes as central to the criminological project. It is necessary for criminology, Agozino argues, to develop technologies of peace and love ‘instead of being fixated on the gunboat criminology of imperialism.’90 Setting the tone for a counter-colonial/anti colonial

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historiography of human rights, Baxi observes that the heroic resistance against colonisation and apartheid, by Tilak and Mohandas Gandhi ‘may be traced to a multicultural tradition of human rights that resulted decades later in the maturation of jus cogens of international law’, which delegitimated the Enlightenment legacy in unprecedented ways.91 In this historical context then, what are the strategies for peace building that we have before us? At a time when militant struggles have an increasing stronghold and state violence with the guarantee of impunity escalates to alarming levels in cyclical reactions and counter reactions, K.G. Kannabiran asserts that peace processes must be based on an understanding that politics cannot be treated as a law and order problem to be dealt with by a militarised police force.92 Upendra Baxi speaks of the ways in which the colonial state ‘in the form of adjudicatory power and through the legal process, accomplishes simultaneously both the fashioning of political pre-history and the adjudicatory reconstruction of it as a series of crimes, in a strategy to depoliticize popular illegalities.’93 The work of the Committee of Concerned Citizens in generating a dialogue in Telangana and in the rest of the country on the possibilities of a political resolution to conflict is unprecedented. The attempt of the Committee was to expand democratic space by redefining the democratic practices of movements as well as governments. The focus of the Committee since its inception in 1997, was not to foreground the cycle of violence and counter violence between the state and the naxalites, but to bring to the centre of the agenda of the state and the revolutionaries, the more pressing question of people’s aspirations and their basic rights—to a dignified life and livelihood. The peace talks took place from 15 to 18 October 2004.94 There was a formal ceasefire agreement drawn up on the first day—laying down of arms, eschewing direct action, that would lead to a loss of life and damage of properties, and abatement of arbitrary arrests; the second day witnessed a wide ranging discussion on the minimum democratic requirements for peace to prevail—withdrawal of cases against those participating in political agitations, release of political prisoners, removal of rewards for the killing of revolutionary leaders, and reining in mafia gangs operating with state support; the third day witnessed a detailed discussion on land distribution to the poor, with naxalite leaders providing information on the availability of 12 million acres of surplus lands which could easily be distributed to four million landless agricultural labourers in the state. While it is a matter of concern that the talks did not move to the second round, or the fact that the ground gained in the first round could not be sustained, the effort stands out as a lesson in deliberative democracy, outside the conundrums of crime and punishment. To quote the Committee: A resolution of civil conflict will have to be preceded by certain minimal stipulation of restraint on either side followed by an agenda for debate. Legality is not necessarily the strength of stipulations but a measure of Catholicism as a step towards an attempted resolution and peace.95


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As the concluding piece of this essay and indeed this volume, I quote from a poem by the stunning contemporary Marathi poet, Namdeo Dhasal: Man, you should explode Yourself to bits to start with … Man, you should keep handy a Rampuri knife A dagger, an axe, a sword, an iron rod, a hockey stick, a bamboo You should carry acid bulbs and such things on you You should be ready to carve out anybody’s innards without batting an eyelid Commit murders and kill sleeping ones Turn humans into slaves… … Perform gang rapes on stage in the public… Make whorehouses grow: live on a pimp’s cut, cut the women’s noses, tits … One should hang to death the descendents of Jesus, the Paighamber, the Buddha and Vishnu One should crumble up temples, churches, mosques, sculptures, museums … Raise hell all over the place from up to down and in between … Launch a campaign for not growing food, kill people all and sundry by starving them to death Kill oneself too, let disease thrive, make all trees leafless Take care that no bird sings, man, one should plan to die groaning and screaming in pain Let all this grow into a tumour to fill the universe, balloon up And burst at a nameless time to shrink After this all those who survive should stop robbing anyone or making others their slaves After this they should stop calling one another names—white or black, Brahmin, Kshatriya, Vaishya or Shudra … One should regard the sky as one’s grandpa, the earth as one’s grandma And coddled by them everybody should bask in mutual love Man, one should act so bright as to make the Sun and the Moon seem pale One should share each morsel of food with everyone else, one should compose a hymn To humanity itself…96

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ACKNOWLEDGEMENT I am indebted to K.G. Kannabiran, my father, for extended discussions on this paper over several months, but more importantly for teaching me the method of law over the years. I could not have ventured into this project without him. I offer this work as a tribute to him. Any errors are of course entirely mine.

NOTES & REFERENCES 1. This chapter will not recapitulate arguments advanced in the earlier chapters, nor is it an exhaustive account of issues not covered by the volume. Rather it will attempt to flag some issues and point to some directions that could be explored further. 2. The works of Sen, Satadru. 2000. Disciplining Punishment: Colonialism and Convict Society in the Andamans. New Delhi: Oxford University Press and Singha, Radhika. 1998. A Despotism of Law: Crime and Justice in Early Colonial India. New Delhi: Oxford University Press, offer excellent accounts of the praxis of colonial criminal justice in India. 3. Guha, Ranajit. 1999. ‘Chandra’s Death’, in Ranajit Guha, (ed.), Subaltern Studies V: Writings on South Asian History and Society, Delhi: Oxford University Press. (First published 1987). 4. Baxi, Upendra. 1999. ‘The State’s Emissary: The Place of Law in Subaltern Studies’, in Partha Chatterjee and Gyanendra Pandey (eds), Subaltern Studies VII: Writings on South Asian History and Society, p. 252. Delhi: Oxford University Press, 1999. (First published 1992). 5. Ibid., p. 253. 6. Guha, Ranajit Guha. 1983. Elementary Aspects of Peasant Insurgency in Colonial India, pp. 1–2. Delhi: Oxford University Press. 7. Ibid., p. 79. 8. Cf. Ibid., p. 79. 9. Ibid., p. 88. 10. Norrie, Alan. 2005. Law and the Beautiful Soul, p. 60. London: Glasshouse Press. 11. Sen, Satadru. 2000. Disciplining Punishment: Colonialism and Convict Society in the Andamans, pp. 1–2. New Delhi: Oxford University Press. 12. Ibid., p. 248. 13. Ibid., pp. 67–69. 14. For a detailed analysis of the transformation of labour regimes see Supiot, Alain. 2007. Homo Juridicus: On the Anthropological Function of the Law (translated by Saskia Brown). London: Verso. 15. Sen, Sukomal. 1988. May Day and Eight Hours’ Struggle in India, pp. 125–30. Calcutta and Delhi: K.P. Bagchi and Company. 16. Alatas, Syed Hussain. 1977. The Myth of the Lazy Native: A Study of the Image of the Malays, Filipinos and Javanese from the 16th to the 20th century and its Function in the Ideology of Colonial Capitalism, p. 96. London: Frank Cass. 17. Chandavarkar, Rajnarayan. 1998. Imperial Power and Popular Politics: Class, Resistance and the State in India, c. 1850–1950, p. 98. Cambridge: Cambridge University Press. 18. Ibid., p. 75. 19. Ibid., pp. 8–9.


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20. Ibid., pp. 145–46. 21. Guha, Ranajit. 1996. ‘Some Aspects of the Historiography of Colonial India’, in Ranajit Guha (ed.), Subaltern Studies I: Writings on South Asian History and Society. Delhi: Oxford University Press. (First published 1982.) 22. Chandavarkar, Rajnarayan. 1998. Imperial Power and Popular Politics: Class, Resistance and the State in India, c. 1850–1950, p. 150. Cambridge: Cambridge University Press. 23. Cf. Ibid., p. 154. 24. Guha, Ranajit. 1983. Elementary Aspects of Peasant Insurgency in Colonial India. Delhi: Oxford University Press. 25. Kannabiran, K.G. 2004. The Wages of Impunity: Power, Justice and Human Rights. Delhi: Orient Longman. 26. Gauba, K.L. 1946. Famous and Historic Trials, pp. 37–38. Lahore: Lion Press. 27. Butler, Josephine. 1987. ‘Male and Female Morality’, in Barbara Dennis and David Skilton (ed.), Reform and Intellectual Debate in Victorian England, London: Croom Helm. Venkataratnam, Raghupati. ‘Social Purity and the Anti Nautch Movement’, in C.Y. Chintamani. 1901. Indian Social Reform, Madras. Also Pivar, David J. 1973. Purity Crusade: Sexual Morality and Social Control, 1868–1900, Westport, Conn: Greenwood Press. 28. Dubois, Abbe. 1989. Hindu Manners, Customs and Ceremonies, translated by H.K. Beauchamp. Delhi: Oxford University Press. 29. I have discussed these questions in greater detail in Kannabiran, Kalpana. 1995. ‘The Judiciary, Social Reform and the Debate on Religious Prostitution in Colonial India’, Economic and Political Weekly, 28 October 1995, 30(43): WS 59–WS 69. 30. See Ramamirthammal, Muvalur. 2003. Web of Deceit: Devadasi Reform in Colonial India, translated, edited and with an introduction by Kalpana Kannabiran and Vasanth Kannabiran, New Delhi: Kali for Women. 31. Kalki. 1931. ‘Deviyarin Desa Sevai’, Ananda Vikatan, 17 September 1931. 6(8). 32. ‘The prostitutes take upon themselves to train up their children from their infancy and teach them nothing but how to lure the other sex. How, then, can we allow our children to read with these?… Is this the same thing as arguing that a Brahmin cannot sit with a Pariah? No, we are strenuous in upholding the cause of education…. Let the Government establish one school in each Division exclusively for the children of prostitutes.’ Report on Native Newspapers in the Madras Presidency, Report on Tamil Newspapers for the Week ending 3 August 1878. Tamil Nadu Archives, Chennai. 33. G.O. No. G Law 1539 (Councils, Leg. Councils, Prisoners), 15/4/32. Tamil Nadu Archives, Chennai. 34. Stree Shakti Sanghatana. 1989. We Were Making History: Women in the Telangana Armed Struggle, New Delhi: Kali for Women. 35. Jeffreys, Sheila. 2002. ‘Trafficking in Women versus Prostitution: A False Distinction’, Keynote Address, Townsville International Women’s Conference, James Cook University, Australia, 3–7 July 2002. 36. The International Committee for Prostitutes’ Rights (ICPR), Amsterdam, 1985. Also, Veshya Anyaya Mukti Parishad (VAMP) and SANGRAM. 2007. ‘A Statement of Women in Prostitution’, in Nivedita Menon (ed.), Sexualities, pp. 325–28. New Delhi: Women Unlimited in association with Kali for Women. 37. Jean D’Cunha’s long engagement with this issue is well known, as also the work of groups like SANGRAM in Sangli, Sanlaap in Kolkata and Prajwala in Hyderabad—each having a distinct position, but contending with the criminal law on the ground. For an extensive review of the debates, see Rajan, Rajeswari Sunder. 2002. The Scandal of the State: Women, Law and Citizenship in Postcolonial India. New Delhi: Permanent Black and Kotiswaran, Prabha, ‘Preparing for Civil Disobedience: Indian Sex Workers and the Law’. Available online at http://www.altlawforum. org/Resources/sexwork/prabha%20on%20prostitution.pdf., accessed on 15 May 2008. 38. Dr Upendra Baxi vs State of Uttar Pradesh, (1983) 2 Supreme Court Cases, p. 308; Dr Upendra Baxi and Ors vs State of Uttar Pradesh and Ors, (1986) 4 Supreme Court Cases, p. 106. 39. Available online at www.prajwalaindia.org/leagaladv.htm. Accessed on 15 May 2007. 40. Kannabiran, Kalpana. 2004. ‘Voices of Dissent: Gender and Changing Social Values in Hinduism’, in Rinehart, Robin (ed.), Hinduism in Modern Times. Santa Barbara, CA: ABC-CLIO.

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41. O’Hanlon, Rosalind. 1994. A Comparison between Women and Men: Tarabai Shinde and the Critique of Gender Relations in Colonial India. New Delhi: Oxford University Press. 42. Sarkar, Tanika. 2001. Hindu Wife, Hindu Nation: Community, Religion and Cultural Nationalism. New Delhi: Permanent Black and Chakravarti, Uma. 1989. ‘Whatever Happened to the Vedic Dasi? Orientalism, Nationalism, and a Script for the Past.’, in Kumkum Sangari and Sudesh Vaid (eds), Recasting Women: Essays in Colonial History, pp. 27–87. New Delhi: Kali for Women. 43. For a detailed discussion on gender dimensions of the Indian Penal Code, see, Kumari, Ved. 1999. ‘Gender Analysis of the Indian Penal Code’, in Amita Dhanda and Archana Parasher (ed.), Engendering Law: Essays in Honour of Lotika Sarkar, pp. 139–60. Lucknow: Eastern Book Company. 44. Ambedkar, B.R. ‘Castes in India’, in Valerian Rodrigues, (ed.). 2002. The Essential Writings of B.R. Ambedkar, pp. 241–62. New Delhi: Oxford University Press. 45. Forbes, Geraldine and Tapan Raychaudhuri (eds). 2000. The Memoirs of Dr Haimabati Sen: From Child Widow to Lady Doctor, p. 98. New Delhi: Roli Books. 46. Ambedkar, B.R. ‘Annihilation of Caste’, in Valerian Rodrigues (ed.). 2002. The Essential Writings of B.R. Ambedkar, pp. 263–305. New Delhi: Oxford University Press, pp. 263–305. 47. For a detailed discussion on judicial discourse on the relationship between the devadasi institution and prostitution see Kannabiran, Kalpana. 1995. ‘The Judiciary, Social Reform and the Debate on “Religious Prostitution” in Colonial India’, Economic and Political Weekly, 30(43): WS 59–WS 69. 48. Law Commission of India 2000, 172nd Report on Reform in Rape Laws, para 3.1.2.1. 49. Protection of Women from Domestic Violence Act, 2005 (No. 43 of 2005). 50. 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. 51. Baxi, Pratiksha. 2006. ‘Habeas Corpus in the Realm of Love: Litigating Marriages of Choice in India, Australian Feminist Law Journal, 25: 59–78. 52. Baxi, Pratiksha, Shirin M. Rai, Shaheen Sardar Ali. 2006. ‘Legacies of Common Law: “Crimes of Honour” in India and Pakistan’, Third World Quarterly, 27(7): 1239–53. See also, Chowdhry, Prem. 2007. Contentious Marriages, Eloping Couples: Gender, Caste and Patriarchy in Northern India. New Delhi: Oxford University Press. For an analysis of the subjugation of dalits, and dalit women by caste 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, pp. 46–66. New Delhi: Women Unlimited. 53. Arnold, David. 1986. Police Power and Colonial Rule: Madras 1859–1947, p. 231. Delhi: Oxford University Press. 54. Ibid., pp. 230–36. 55. Baxi, Upendra. 1982. The Crisis of the Indian Legal System, p. 86. New Delhi: Vikas Publishing House. 56. Kannabiran, K.G. 2004. The Wages of Impunity: Power, Justice and Human Rights, p. 19. New Delhi: Orient Longman. 57. Menon, N.R. Madhava. 2002. ‘Police Reform: The Imperative for Efficiency in Criminal Justice’, Article 2, June 2002, 1(3): 3. See also in this context, the observations of Justice AN Mulla in State of Uttar Pradesh vs Mohd. Naim, All India Reporter 1964 Supreme Court, p. 703, quoted in full in Kannabiran, K.G. 2004. The Wages of Impunity: Power, Justice and Human Rights, p. 70. New Delhi: Orient Longman. 58. Ibid. 59. The Justice Shrivastava Commission of Inquiry Report, 1961, cf. Gonsalves, Colin. 2002. ‘Institutionalized Communalism in the Police Force: The breakdown in the Criminal Justice System’, Article 2, June 2002, 1(3): 7–8. 60. The Justice Dayal Commission of Inquiry, 1967, cf. Ibid. 61. The Justice Reddy Commission, 1969, cf. Ibid. 62. The Justice Madon Commission, 1970, cf. Ibid. 63. The Justice Vithyatlul Report of the Commission of Inquiry, 1971, cf. Ibid.


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64. The Justice Narain, Ghosh and Rizvi Commission of Inquiry into the Jamshedpur riots in 1979; The N C Saxena inquiry into the Meerut riots of 1982, cf. Ibid. 65. Walia, Arunleev Singh. 2002. ‘Dark Clouds of State Repression: Police Excesses have Broken Punjab’, Article 2, June 2002, 1(3): 20. 66. Ibid., p. 21. 67. Shourie, Arun. 1983. Mrs. Gandhi’s Second Reign, pp. 317–21. New Delhi: Vikas Publishing House. 68. Paschim Banga Kheria Sabar Kalyan Samity vs State of West Bengal and Ors, W.P. No. 3715 of 1998. The police and jail officers were found guilty of torture in custody leading to death and of several procedural irregularities in investigation and during arrest, after a second post mortem ordered by the Calcutta High Court revealed injuries that negated the claim of the jail authorities that Budhan Sabar had committed suicide by hanging. The state was directed to pay compensation of Rs One Lakh to Budhan’s family and was directed to initiate action against the guilty officers. I am indebted to Justice D.K. Basu for intense discussions on this very significant case, in which his intervention was crucial to the positive outcome. 69. Ibid. 70. Ibid. 71. Nanda, Raman. 1981. ‘Jails in India: An Investigation’. People’s Union for Civil Liberties Bulletin, November 1981. 1(7). 72. PUCL Bulletin, October 1981. 1(6). 73. This was repeated in Gujarat in 2002 as a Hindu fundamentalist attack on Muslim women in which the state with all its might was complicit. 74. Nussbaum, Martha C. 1999. ‘“Secret Sewers of Vice”: Disgust, Bodies and the Law’, in Susan A. Bandes (ed.), The Passions of Law, p. 48. New York & London: New York University Press. 75. The constitutional right to life under Article 21 has been held to include the dignity of the dead body. 76. Baxi, Upendra. 2002. The Future of Human Rights. New Delhi: Oxford University Press. 77. Testimony of Smt. Sulochana at a public hearing in Hyderabad in March 2004. This was the first time Sulochana was recounting this experience in public. The testimony was in Telugu. Translation by the author. 78. Bama. 2000. Karukku, p. 24–25. Delhi: Macmillan. 79. In August 2007, 21 persons were sentenced to life imprisonment and 56 persons sentenced to one year rigorous imprisonment in the Chunduru massacre case by the Special Sessions Judge-cum-Addl. Sessions Judge, Guntur. State vs Modugula Sambi Reddy and Ors., Sessions Case No. 36/1993. 80. See ‘Report Of The Left Parties Delegation To Duleena, Jhajjar District Haryana On October 17 In Protest Against Dalit Lynching Atrocity’. Available online at http://www.sacw.net/2002/LeftOnDalitLynchingOct02.html, accessed on 15 May 2008. 81. The problematic ways in which the judiciary imagines the existence of mitigating circumstances in criminal law was brought home to us in a series of meetings with trial court judges where the offer of marriage by a man accused of rape to the victim was interpreted by some as a ‘mitigating circumstance’ that should drop the conviction below the minimum prescribed by law. 82. To borrow Upendra Baxi’s phrase. 83. For a detailed analysis of the dalit articulation of caste as race, see Kannabiran, Kalpana. 2006. ‘A Cartography of Resistance: The National Federation of Dalit Women’, in Nira Yuval Davis, Kalpana Kannabiran and Ulrike Vieten (eds), The Situated Politics of Belonging. London: Sage Publications. 84. Baxi, Upendra. 2002. The Future of Human Rights, p. vii. New Delhi: Oxford University Press. 85. Arendt, Hannah. 1958. The Human Condition. Chicago: Chicago University Press, cf. Baxi 2002: 18–19. 86. Baxi 2002, op. cit., p. 19. 87. Kundera, Milan. 1996. The Book of Laughter and Forgetting translated by Aaron Asher. London: Faber and Faber. 88. The Preamble to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, for instance. 89. Agozino, Biko. 2003. Counter Colonial Criminology: A Critique of Imperialist Reason, p. 1. London: Pluto Press.

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Ibid., p. 230. Baxi, Upendra. 2002. The Future of Human Rights, p. 27. New Delhi: Oxford University Press. Kannabiran, K.G. 2004. The Wages of Impunity: Power, Justice and Human Rights, p. 10. New Delhi: Orient Longman. Baxi, Upendra. 1999. ‘The State’s Emissary: The Place of Law in Subaltern Studies’, in Partha Chatterjee and Gyanendra Pandey (ed.), Subaltern Studies VII: Writings on South Asian History and Society, p. 259. Delhi: Oxford University Press. First published 1992. 94. Committee of Concerned Citizens. 2006. Negotiating Peace: Peace Talks between Government of Andhra Pradesh and Naxalite Parties. Hyderabad: Committee of Concerned Citizens. 95. Ibid., p. xxix. 96. Namdeo Dhasal. ‘Man You Should Explode’, in Namdeo Dhasal: Poet of the Underworld, Poems 1972–2006, selected, introduced and translated from Marathi by Dilip Chitre, 2007, pp. 34–36. Chennai: Navayana.

About the Editors and Contributors

THE EDITORS Kalpana Kannabiran is Professor of Sociology at NALSAR University of Law, Hyderabad, where she teaches Sociology and Law. A recipient of the VKRV Rao Award for Social Science Research in 2003 for her work in social aspects of law from ICSSR, she was Member of the Expert Group on the Equal Opportunity Commission, Government of India, 2007–08. Ranbir Singh, Vice Chancellor of NALSAR University of Law from 1998 to 2008, is currently Vice Chancellor, National Law School, Delhi. He was Member of the DNA Profiling Advisory Committee constituted by the Department of Bio-technology, Government of India and member of the Committee appointed by the Ministry of Home Affairs, to draft a new Police Act. Before setting up NALSAR in 1998, Prof. Ranbir Singh taught Law at Kurukshetra University, Maharshi Dayanand University, Rohtak and the National Law School of India University, Bangalore.

THE CONTRIBUTORS Paula Banerjee specialises in issues of conflict and peace in South Asia. She has published extensively on issues of forced displacement. She has recently co-edited a book on Internal Displacement in South Asia (Sage, 2005). She has been working on themes related to women, borders and democracy in South Asia and has published extensively on issues such as histories of borders and women in conflict situations. She is on the editorial board of a number of international journals such as Prachya and Forced Migration Review. Currently, she is teaching at the Department of South and Southeast Asian Studies, University of Calcutta and is Member of the Calcutta Research Group. Sumanta Banerjee, a former journalist with The Statesman in Calcutta and New Delhi from 1962 to 1973. He is now based in Dehradun and is engaged in research on Social History and Popular

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Culture of 19th Century Calcutta. He is the author of several books, including The Parlour and the Streets: Elite and Popular Culture in Nineteenth Century Calcutta (Seagull Books, Calcutta. 1989); and Crime and Urbanization: Calcutta in the Nineteenth Century (Tulika Books, New Delhi. 2006) Bikram Jeet Batra is a Delhi-based lawyer and researcher. He studied law at the universities of Pune and Warwick and is presently Visiting Fellow at the Centre for Study of Law and Governance, Jawaharlal Nehru University, Delhi. Previously, he was Legal Officer at Amnesty International India and Research Associate at the Institute of Advanced Legal Studies, Pune. Kaveri I. Haritas is a lawyer from India, based in Geneva, working on human rights issues. Her experience broadly covers child rights, gender and women´s rights, urban poverty and marginalisation and urban governance issues, combining human rights and development approaches. She is also closely attached to Amba, a Bangalore based non-governmental organisation. Aloysius Irudayam S.J. is an experienced grassroots activist and a trainer on social issues. He also has authored several advocacy publications: Atrocities against Dalits in India—National Campaign on Dalit Human Rights, Chennai, 2000, Dalits in the World of Globalisation—National Campaign on Dalit Human Rights, New Delhi, 2004, Adivasis Speak Out: Atrocities against Adivasis in Tamil Nadu—Books for Change, Bangalore, 2004, Dalit Women Speak Out: Violence against Dalit Women in India—National Campaign on Dalit Human Rights (NCDHR), National Federation of Dalit Women (NFDW) and Institute of Development Education, Action and Studies (IDEAS), Madurai, 2006. He is presently Programme Director of the Research, Advocacy and Human Rights Education Department in the Institute for Development Education, Action and Studies, Madurai, Tamil Nadu. Abha Singhal Joshi was admitted to the Bar in 1983. For the past 15 years she has worked at developing and using modules for the spread of legal awareness. Currently, she is Executive Director, Multiple Action Research Group [MARG], a Delhi-based organisation working on diverse legal issues. K.G. Kannabiran is a Senior Advocate based in Hyderabad and the National President of the People’s Union for Civil Liberties. He has written extensively on questions of human rights; in courts across the country, he has defended political activists and people whose human rights have been violated both by the state and private actors and has been a leader of the movement for civil liberties in India over three decades. He is the author of Wages of Impunity: Power, Justice and Human Rights, New Delhi: Orient Longman, 2003.


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Kalpana Kannabiran is Professor of Sociology at NALSAR University of Law, Hyderabad, India and founder member of Asmita Resource Centre for Women where she coordinates research and legal outreach for women. She was Chair of RC32 (Women in Society) of the International Sociological Association from 2002–06 and General Secretary of the Indian Association for Women’s Studies in 1998–2000. Her areas of specialisation are Sociology of Law, Jurisprudence and Gender Studies. Among her publications are De-Eroticizing Assault: Essays on Modesty, Honour and Power (Stree, Calcutta, 2002), and The Situated Politics of Belonging (London: Sage, 2006). Jayshree P. Mangubhai is a lawyer activist working in the field of human rights research in India, particularly focusing on rights advocacy for Adivasi and Dalit communities and women. She has authored several advocacy publications: Atrocities against Dalits in India—National Campaign on Dalit Human Rights, Chennai, 2000, Dalits in the World of Globalisation—National Campaign on Dalit Human Rights, New Delhi, 2004, Adivasis Speak Out: Atrocities against Adivasis in Tamil Nadu—Books for Change, Bangalore, 2004, Dalit Women Speak Out: Violence against Dalit Women in India—National Campaign on Dalit Human Rights (NCDHR), National Federation of Dalit Women (NFDW) and Institute of Development Education, Action and Studies (IDEAS), Madurai, 2006, New Economic Reforms: Hope or Mirage for Dalit Livelihoods?—Sakshi Human Rights Watch—Andhra Pradesh, Hyderabad, 2004. She is currently a Research Associate in the Institute for Development Education, Action and Studies, Madurai, Tamil Nadu. Ritu Menon is a publisher and writer. She is co-author of Borders and Boundaries: Women in India’s Partition (Delhi: Kali for Women, 1998); Unequal Citizens: A Study of Muslim Women in India (2004) among others and has edited No woman’s land: Women from Pakistan, India and Bangladesh Write on the Partition of India (2004) and several anthologies of stories by Indian women. Seema Misra is a lawyer based in Delhi. She has been involved in legal literacy and human rights awareness since 1990. She has been working with organisations such as Multiple Action Research Group; Amnesty International, Commonwealth Human Rights Initiative, Satark Nagarik Sangathan and Habitat International Coalition-Housing and Land Rights Network. Vijay K. Nagaraj currently teaches at the Tata Institute of Social Sciences (TISS) in Mumbai. He has worked as a political activist with the Mazdoor Kisan Shakti Sangathan in Rajasthan and with Amnesty International. His interests are social movements, human rights and socio-legal studies. Arvind Narrain is a Founder Member of the Alternative Law Forum, based in Bangalore. ALF is a collective of lawyers who engage in a critical practice of law. Arvind works on issues pertaining to

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human rights and also with specific reference to the human rights of those who are discriminated against on the basis of gender identity and sexual orientation. Meena Radhakrishna teaches at the Department of Sociology, Delhi School of Economics, University of Delhi. Apart from her other interests, she is engaged in research on laws affecting marginalised sections, especially denotified communities. She has been invited by the Ministry of Social Justice, Government of India to serve on deputation as Director of Research, National Commission on Denotified, Nomadic and Semi-Nomadic Tribes. Meena is the author of Dishonoured by History : ‘Criminal Tribes’ and British Colonial Policy, Orient Longman, 2001. Ranabir Samaddar is the Director of the Calcutta Research Group, and has pioneered along with others peace studies programmes in South Asia. The recently published Politics of Dialogue (Ashgate, 2004) is the culmination of his work on justice, rights, and peace. He has authored a three volume study of Indian nationalism, of which the third is, A Biography of the Indian Nation, 1947–97 (Sage, 2001). These political writings which include other noted works such as Paradoxes of the Nationalist Time (University Press Limited, 2002) and The Marginal Nation (Sage, 1999) have challenged the prevailing cultural accounts of the birth of nationalism and the nation state, and have brought to fore a new turn in the inquiry into the current history of post-colonial politics in South Asia. K.S. Sangwan is Professor of Sociology at Maharishi Dayanand University, Rohtak. He has worked extensively on community justice systems and community-based dispute resolution mechanisms with specific reference to Haryana. S.R. Sankaran is a civil servant who worked in various assignments in the Central and State governments as a member of the Indian Administrative Service and retired as Secretary in the Ministry of Rural Development in the Government of India. His major area of work and concern has been the safeguarding of the rights and the development of the weaker sections of the society, specially the people belonging to the Scheduled Castes and the Scheduled Tribes. Shekhar P. Seshadri is Professor, Psychiatry, (Child and Adolescent Psychiatry) National Institute for Mental Health and Neuro Sciences, Bangalore. He has much experience in child psychiatry and is one of the senior most child psychiatry experts in Asia. He is widely reputed for his work in the area of life skills training, child sexual abuse, masculinities, sexual minorities, women’s mental health issues and related areas.


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Ujjwal Kumar Singh is a Reader in the Department of Political Science, University of Delhi, Delhi. Earlier, he was a Fellow at the Centre for Contemporary Studies, Nehru Memorial Museum and Library, New Delhi. He is the author of two books Political Prisoners in India (Oxford University Press, 1998, paperback 2001) and The State, Democracy and Anti-Terror Laws in India (SAGE, 2007). He is currently editing a volume on Peace and Human Rights: Ideas, Institution and Movements to be published by SAGE.

Index

abducted persons, 281–85 Abducted Persons (Recovery and Restoration) Act (1949), xvi, 281, 283–84, 286–90 abducted women, 32, 281–84, 286–90, 460 Abdul Nur, 60, 63–64 aborigines, 4, 7–8, 10 abortions, 102, 459 accountability and transparency, 155, 160–61, 326, 327, 374, 410, 465 Adivasi Morcha Sangathan (AMS), 168–70 Adivasis, xv, 111, 142, 466; entitlements to life, 165ff; protests, 167–76; women, 142–49, 151–52, 155. See also Dalits adulthood, 181, 198 Advani, L.K., 422 affirmative action, 160 age of consent, 55, 82, 186, 190 agrarian disturbances, 452. See also Telangana movement agricultural labourers, 135 Ahmed Hussain, 80, 83–88 Akhil Bharatiya Nepali Ekta Samaj (ABNES), 245 alcoholism and drug addiction, 195 All India Kisan Sabha (AIKS), 241 All Tripura Tribal Force (ATTF), 245 Allen, B.C., 259 Ambedkar, B.R., 19, 126 American Bar Association, 202 Amnesty International, 159 anal sex, 56 Anarchical and Revolutionaries Crimes Act (1919), 235 Andaman Islanders, 7–8 Andamans, 454 Andhra Pradesh Civil Liberties Committee, 177; State Coordination Committee, 404; Suppression of Disturbances Act (Act No. III of 1948), 240–41; 1967, 403

Anglo-Manipur war (1891), 258 Anglo-Maratha War (1817), 233 Anglo-Nepalese war (1814), 233 anthropometry and anthropology, 3, 9, 370 Anti-Hijacking Act (1982), 422 Apunba Lup, 276 arbitrary detention, xi, 68, 69, 461, 464, 470 Armed Forces (Assam-Manipur) Special Powers Ordinance, 265 Asiad Workers Case, 137, 228 Assam: Disturbed Areas Act (1955), 240, 269–70; Maintenance of Public Order Act (1953), 240 Assam Gana Parishad (AGP), 245 Assam Rifles, 247, 257, 269–70, 274–76, 422 associational freedom, xiii, 382ff, 457 associational offences, 388 associational rights, xvii, 454, 464–65 Atmaram vs King Emperor, 124 atrocity, 70, 103–4, 127–31, 139–40, 144–45, 147, 149–53, 159, 170, 232, 274, 388–90, 402, 421, 468. See also Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Ayyangar, Gopalaswami, 282 Babri Masjid demolition, Ayodhya, 1992, xii, 391–92 Bachan Singh vs State of Punjab (1980), 419 Bama, 467 Bandhua Mukti Morcha vs Union of India, 137 bandit, 452 Banerjea, P.N., 261 Banjaras, 9–10 Banumathi, R., 99–100, 101–02, 112 Baxi, Upendra, xi–xii, xiii, xviii, 126, 133, 228, 451–52, 461, 468, 470 Bedi, Kiran, 311 begar, 136

Index beggar offenders, 4, 18–21 Bengal: Criminal Law Amendment (BCLA) Ordinance, 236; Ordinances IX and XI (1931), 236; Regulation III (1818), 233, 236, 237; State Prisoners Regulation (Adaptation) Order, 237; Supplementary Act (1932), 236–37; Suppression of Terrorist Outrages Act (1936), 239 bestiality, 91 bhaichara, 331, 335, 337, 339, 341–42, 345–50 Bhanwari Devi, 78–79, 94–98, 112, 113, 157, 158 Bharatiya Janata Party (BJP), 422, 438 Bhargava Commission of Inquiry, 463 Bhilai Steel Plant, Madhya Pradesh, 395–96 Bhopal Gas Leak Disaster (Processing of Claims) Act, 318 Bhopal gas tragedy (1984), xvi, 314–18, 319–22, 327 bisexual, 48. See also homosexuality Bishnu Deo Shaw vs State of West Bengal (1979), 418 Bluebird Operation, 270 Bodos, 245 Bombay: Borstal Schools Act (1929), 20; Children Act (1948), 20; Habitual Offenders Act (1959), 20; Legislative Council, 126; Prevention of Begging Act (1959), 19–20; Probation of Offenders Act, 1938, 20; State Prisoners Regulation (1827), 233 bonded labour/labourer, 122, 134–38, 184, 306–7; children, 210; sexual exploitation, 192 Bonded Labour System (Abolition) Act, 1976, xiv, 136–39, 193 Border Security Force (BSF), 278 Bordoloi, Gopinath, 262 Bose, J.L., 168 Bowers vs Hardwick, 66 Brahmo Marriage Act (1872), 34 British rule, 7–11, 13–17, 259, 382, 402, 404, 406, 451 Broomfield, Judge, 406 brothels, 30 Brother John Anthony vs State, 56 Brown, Mark, 8–9 Buchanan, Francis, 134 Budhachandra, Maharaja of Manipur, 263–64, 273 Budhan Sabar, 463–64 burden of proof, 151, 355–56, 373 Calcutta underworld, 29–30, 32–35, 37–38, 40, 42–45 Cantonment Act (1864), 31 capital punishment, 242, 411, 413, 415, 417, 435, 436

483

capitalism, 135, 452–54 Carlyle, Thomas, 5 caste system, xii, 94, 103, 122, 127, 143–44, 146, 148, 151–56, 158–59, 296, 331, 335, 342, 386, 459, 467–68 Catholicism, 470 Celts, 10–11 Central Bureau of Investigation (CBI), 175, 317, 398–99 Central Reserve Police Force (CRPF), 273–74 Centre for Dalit Rights (CDR), 144 Chadwick, Edwin, 6 Chamars, 126 Chander, Subhash, 434–35 charity versus rights, xvi chastity, 87, 90, 98 Chattishgarh Mukti Morcha, 395, 400 Chatunni vs Appukuttan, 124 child, 181ff; and criminology, 182; labour, 184, 191–94, 195, 201, 210, 212; marriage, 83, 94–97, 111, 157, 186; prostitution and trafficking, 188–90, 195, 201, 210, 212, 457; linking with Child Sexual Abuse Laws, 190–91; receiving in criminal law system, 210–11; sexual abuse, 105, 182, 183, 184–203, 205–7, 212, 275; sexual violence, 109, 184; status under Indian law, 183–84; testimony and the law, 203– 10;—suggestibility and appropriate questioning methods, 207–09;—validity, 203–5; victims-survivors; rehabilitation and reintegration, xv, 182, 184, 187, 189–90, 192, 197, 199–202, 209 Child Labour (Prohibition and Regulation) Act, 1986, 191 Child Line Network, 210 Child Marriage Prohibition Act, 186 child-rearing, 195 child-wives, 82–83, 111, 459 Choudhury, Maulvi Abdur Rashid, 261 Chunduru, 468 circumstantial evidence, 369 citizenship, 289, 315, 394, 460; rights, 456–57;—of women, 459 Civil Disobedience Movement, 461 civil liberties, 84, 235, 257, 261, 371; struggles, 257, 265–66, 466 civil rights, 84, 127–29, 235, 304, 389, 411, 457, 461 civil society, xii, 167, 176, 289, 311 civilization, 303

484


Claims Act, 318–20, 327 class system, 43, 72, 210; in Calcutta, 29 cognizable offence, 308 Coimbatore bomb blasts (1998), 391–93 collective: mobilization, 465; violence;—human rights and justice, 466–69;—against minorities, 391–94;— and sexual assault, 106–10; well being, 50 colonial social practices and customs, 15–16, 22, 28; reconfiguration of crime and women in Calcutta, 43 colonial state, xvii, 111, 249, 370, 452, 454, 457, 461, 470 colonialism, xiii, 6, 402, 469; and the rule of law, 451–56 colonies, 3–4, 5–6, 10–11, 43, 452, 454 commercialisation, 14–15 Commission of Sati (Prevention) Act (1987), 421 Committee of Concerned Citizens, 470 Committee on Reforms of the Criminal Justice System (Malimath Committee), xii, xvii, 247, 373, 410, 431, 435, 438 Committee on the Elimination of Discrimination Against Women (CEDAW), 109–10, 112 Committee on Untouchability and Economic and Educational Development of the Scheduled Castes (Elayaperumal Committee, 1965), 127 Common Minimum Programme (CMP), 246 communal riots, 296, 379, 388 Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill (2005), 110 communalism, 143, 462–63 communism, 402, 404 Communist Party of India (Marxist) (CPI-M), 239, 404 Communist Party of India (Marxist-Leninist) (CPI-ML), 239, 245, 402 Communists, 237–38, 383 community, communities, xvii, 203; gender and border, 257ff; ghettoisation, 469; justice systems, 79 commutation, 412–13, 416–17, 430, 432, 434–35 compensation and rehabilitation, 104, 150, 159; and restitution, 429–31 concubinage, 92 confession, 35, 85, 236, 242–43, 247, 359–64, 368, 373–75, 397, 428, 454, 461 confinement, 358 consent, 80–83, 466; and child sexual abuse, 186–88. See also age of consent

consequentiality, 314 conspiracy, 68, 99, 121, 130, 228, 232, 235–36, 250, 372, 376, 382ff Constituent Assembly, 19, 125, 393 Constitution of India (1950), xii, xiv–xv, 55, 65, 70, 73, 102–4, 112–13, 122, 125–27, 128–33, 136, 138, 140, 142, 144–46, 156, 159–60, 165–67, 170, 175, 179, 191–92, 197, 228, 238–40, 243, 250, 257, 261–63, 269–70, 283–84, 303, 305–6, 310, 373–74, 378, 385–87, 389–98, 401–04, 405–06, 413–14, 417, 419–20, 433–34, 451, 468; 73rd and 74th Amendments, 387; Concurrent List, 17, 19; Indian Penal Code (1860) and, 122, 123–25 constitutional provisions, 160, 373 constitutionalism, xi, xiii, 392–94, 455 Constitutionality, 413–14, 420 Contagious Diseases Act (CDA) 1868, 31, 39, 45, 456 contract labour, 396 Contract Labour (Regulation and Abolition) Act, 396 Convention for Suppression of Unlawful Seizure of Aircrafts (Montreal Convention), 422 Convention on the Rights of the Child (1989), 185, 196 conversion, 289 convict, 57, 59, 62, 63, 80, 102, 124, 128, 157, 198–99, 208, 233, 296, 297–98, 346, 388, 399, 420, 422, 429, 431–34, 436, 438, 453–54, 466 conviction, 41, 43, 58, 64, 67, 102, 109, 112, 127, 151, 156, 188–89, 193, 204, 212, 230, 310, 344, 360, 372, 383, 385, 388, 399, 401, 406, 410, 412, 415–17, 421–24, 430, 437, 456 correction, xvii, 188, 198, 415 corruption, 168, 416; collusion, consequences and victims, 314ff; rural development and public hearings, 322–26 counterfeiting, 29 court procedures and the children victims, 211 crime(s): control and punishment, 142, 146, 162; passion and detachment: colonial foundations of rule of law, 355ff; and society, relation, xvii; social impact, 426 criminal, 357, 358, 374, 455; behaviour, 195; intimidation, 71, 99, 306, 455; jurisprudence, 373; responsibility, 183, 386 Criminal Justice Act (1991), 208 Criminal Justice System (CJS) in India, xi, xvii, 50, 52, 55, 59, 78–79, 89–90, 105, 121ff, 142–43, 157–58, 160–62, 228, 303, 371, 391, 393 451, 438, 468;

Index agencies, 197; and children, 182–84, 198, 210–12; in Haryana, xvi–xvii. See also Khap Panchayat; reform, 409–11; critique from a subaltern women’s perspective, 146–49; widening of reach, 55–57 Criminal Law (Amendment) Bill (1980), 90 Criminal Law Amendment Act (1908 and 1932), 383, 462 Criminal Procedure (Amendment) Act, 240 Criminal Procedure Code (CrPC), 90, 170–71, 176, 185, 205–7, 269, 301–5, 308–9, 310, 372, 396, 459, 403, 405, 411–15, 417, 419, 421, 430, 432, 434 criminal responsibility, 183, 386 criminal tribes, 16, 304 Criminal Tribes Act (CTA), 1871, xiii–xiv, 11–12, 18, 22, 59; 1911, 17 Criminal Tribes Enquiry Committee, 1949–50, 17 criminalisation: of femininity, 43–45; of homosexuality, 51; of menial worker: colonial migrant as vagrant, 14–16; of poor, 44 criminality, xii, 6, 10, 16, 49, 194–95, 213, 301, 323, 325, 357–58, 361, 370, 378–79, 382, 386, 451; corruption, collusion, consequences and victims, 314ff; female criminality in colonial Calcutta, 28ff; impunity, and legal and social closures, 326–28 criminals, 3, 4, 8–10, 12, 13, 16, 18, 20–21, 51, 148, 229–30, 232, 243, 257, 263, 271, 278, 296, 309, 356–58, 360, 371, 379, 452–54; females, 28ff; profiles, 297–301 criminology, 3, 28, 48–51, 72–73, 144–46, 147, 149, 155, 182, 195, 378, 414, 417–18, 437, 451ff; of the self, 66–67; within the rights-based governance framework, 159–62 cross-examination, 359 custodial: deaths, 431, 465; rape, 80, 83, 90–91, 465; sexual abuse, 186; violence, 78, 460, 461–66 D.K. Basu vs State of West Bengal, 302–3, 305 D.P. Minawalla vs Emperor, 60–62 dacoity, 9, 363, 453 Dalbir Singh and Others vs State of Punjab (1979), 418 Dalits, 104, 111, 144, 146–51; mass crimes, 438; murder in Melavalavu, 383–91; violence against, 466–68; women, 97, 103–4, 113, 142–43, 147–48, 151–54, 157–61 Darwin, Charles, 5–8 Das, Chandrima, 104

485

Datta, Sukumari, 33 death penalty, xvii, 413–14, 418–23, 434–35, 437; sentence, 235, 371–72, 405, 411, 413–15, 420, 422–30, 435–36 Declaration on the Elimination of Violence Against Women, 104 decriminalisation, 49, 190, 457 Defence of India (Criminal Law Amendment) Act IV (1915), 235, 261 Defence of India Act (1939), 236, 261; (1962), 238; (1971), 240 Defence of India Ordinance (1962), 238 Defence of India Rules (DIR), 236, 239 defilement, 87–88 Delhi (Ordinance No. XXIV, 1947), 290 delinquency, 182, 193–203, 211, 213, 378, 426 delinquent behaviour, 193, 198 delinquents, 195, 198, 200, 211 democracy, xiii, 130 , 161, 165, 250, 326, 357–58, 374, 398, 406, 470, 428 democratic citizenship, xviii Depressed Classes, 123, 125 deprivation and poverty, 195 Desai, Morarji, 239 detention in colonial India, 233–37; in post-colonial India, 237–40, 360 devadasi system, 149, 156, 456–57, 459. See also prostitution Devi, Mahasweta, 465 deviance, xi, 49, 198, 213, 263 deviant sexuality, 49, 52, 71, 198 Dhananjoy Chatterjee vs State of West Bengal (1994), 426 Dickens, Charles, 42 displaced persons, 281, 286, 290 Displaced Persons (Claims) Act (1950), 290 Displaced Persons (Compensation and Rehabilitation) Act (1954), 281 Displaced Persons (Institution of Suits) Bill, 281 dispute resolution, 331–32, 334–35, 340, 348–50 disturbed areas acts, 240–41, 248, 250, 269 domestic labour, 191 domestic violence, 113, 458–60, 468 Dow Chemicals, 321 dowry, 93, 156, 339 dowry death cases, 424, 432

486


Dowry Prohibition Act, 1961, 423 Dravida Mahajana Sangam, 123 dying declaration, 362 East India Company, 362; Act (1793), 233–34 economic: composition of female criminals, 29; exploitation, xiv; and social changes, 31; relations, xii Ediga Anamma vs State of Andhra Pradesh, 415 Elayaperumal Committee. See Committee on Untouchability and Economic and Educational Development of the Scheduled Castes Emergency (1975–77), xi, 239–40, 241, 373 emergency powers, 261–63 Emperor vs Mohamed Yousif, 54 Employment of Children Act, 1938, 191 Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act (1993 or 1997), xiv, 132, 134, 138 encroachment of forest land, 169 enforcement principle, 67–72 England: Vagrants Act, 1597, 12; Vagrancy Act, 1824, 12, 16, 17; Law of Evidence, 367–68 entitlements, 165ff epistemic legal racism, xiii equality, xi–xii, xv, 65, 73, 123, 125, 126, 140, 146, 148, 154, 156, 161, 165, 272, 331, 361, 385–87, 393–96 erotic fascination, 45, 91 Essential Commodities Act (1955), 437 European: and Eurasian vagrants and beggars, 36–37; gypsy, 16 Evacuee Property Act (1947), 281 evidence theory, 358, 359–60, 362, 366–70, 373–74, 376–77, 379, 384, 400 evolutionary doctrine, 4, 7–8, 10, 21 Excise Act, 300 excommunication, 340 exploitation, xiv, 29, 41, 42, 100, 122, 129, 137, 142, 144–45, 149, 153, 156–58, 189, 191–93, 195, 272, 395, 402, 456–57, 468 Explosives Act, 422 extortion, 362 extraordinary laws, xv, 227–29, 236, 238, 260–62, 372; and emergence of interlocking legal system, 240–48, 249 Ezhavas, 124

Fabre-Tonnerre, C., 44 Factories Act (1948), 327 Factory Labour Commission, 454 family institution, 52, 458–60; joint family, 331 Fazal Rab Choudary vs State of Bihar, 54 female criminals in colonial Calcutta, xiv, 28ff female foeticide and infanticide, 339, 458 Finance Administration Bill, 281 fingerprinting, 41, 370–71 forced dispossession, xi forgery, 28 Foucault, Michel, 51, 57, 376 fraudulent marriage, 102 freedom of expression, 73 Frontier Tracts Regulation (1880), 258 fundamental rights, 165, 289, 373, 406 Gandhi, Indira, 239–40; assassination case, 376 Gandhi, M.K., 406, 456, 470 Gandhi, Maneka, 374 Gandhi, Rajiv, 317; assassination case, 372, 429 Garland, David, 50 Gautam, Bodhisattwa, 102 gays, 48, 50, 66–67, 71, 72 gender, gender relations, 29, 103, 129, 459, 468; bias, 30, 159; crimes against Adivasi and Dalit women, xv, 145, 153, 155; gendering justice, 99–102; identity, 65, 72–73, 92, 146; rights violations, 145; sensitive criminology, 160–61; and sexuality norms, 51; specific rehabilitation plans, 110; and subordination of the Muslim community, 87; transgression, 51 Ghadr movement, 235 Ghousia, 85, 87 globalisation, 143, 327, 466, 469 Glover, F.A., 43 Goodman, Ryan, 67 Gopalan, A.K., 401 Goswami, S.D., 275 Government of India Act (1935), 237, 260 governmentality, 249, 357, 376 graded inequality, 123 Gujarat riots, 2002, xii, 245, 304, 391–92, 463, 466 gypsies (wandering criminal tribe), 14–15, 17, 20, 22; in England, 14; European, 8–10; Indian, 8–11; Irish, 10–11; as vagrant criminalized menial worker, 11–14

Index habeas corpus, 233–34, 240, 268, 283–84, 460 habitual criminals/offenders, xii, 4, 10, 11, 17–18, 20, 198 Habitual Offenders and Vagrants Act, 1952, 11, 17–18, 22 Hansen, Adam, 5, 6, 13, 15 hard labour, 39, 143, 357, 411, 453 Harijan, 128 Haseena Begum, 465 Hastings, Warren, 360 hate crime, 50–51 Henry, Edward Richard, 41, 370–71 heterosexuality, xiv, 52, 55, 73, 80 hijras and kothis, 71–72 Hinduism, 87, 123, 389 Hindustan Socialist Republican Army, 235 homelessness, 6, 14, 19 homicide, 362 homophobia, 49–50, 72 homosexuality, 185; policing in India, 48ff ; in judicial discourse, 52–65 honour killings, 290 human rights, 72, 113, 146, 161, 289, 410, 458, 461–63, 466–69; movements, xi–xii, xviii, 65; state repression, 460; violations, 69–70, 131, 244, 331–32, 350 Hume, David, 365, 368 Hussain, Anwar, 85–86 identity, power and criminal justice, interplay, xvii, 148 ideological conflicts, 326 illegal detention, 69, 86, 302 illegality and impunity, 13, 322–23, 383 illicit intimacy, 92 immoral community, 89 Immoral Traffic (Prevention) Act (1956), 423 Immoral Trafficking Prevention Act (ITPA), 188 imperialism, xiii, 469 impoverishment, xii, 146, 314 imprisonment, 363, 409, 433 impunity, 4, 61, 96, 100, 107–09, 111, 143, 153, 155–59, 177–78, 289–90, 438, 463, 468, 470; and criminality, 314ff; and the promise of the law, 318–22 incest, 201, 340–41, 426 incestuous abuse, 186–88 Indian Criminal Law Amendment Act, 1908, 372 Indian Criminal Procedure Act, 359–61

487

Indian Evidence Act (1872), 185, 186, 203, 207, 210, 355–56, 359–60, 365–66, 370–74, 376, 378, 383–85, 405 Indian Federation of Women Lawyers, 424 Indian Forest Act, 1927, 171 Indian Penal Code (IPC), xiv–xvii, 39, 43, 53–55, 65, 80–82, 91, 97, 100, 105, 112–13, 121–24, 128–29, 135, 139, 149, 151, 158, 168, 170, 176, 178, 183, 184, 185, 190, 192–93, 227, 247, 306, 318, 359, 361, 372, 382, 386–88, 390, 393, 394, 403, 411, 414, 417, 421, 422, 432, 451, 455–56, 459, 465; Amendment Bill (1972), 416, 419;—1978, 414, 419;—1983, 423; to the Constitution (1950), 123–25; definition of rape, 108; Section 377, 53–58, 59, 208;—contemporary times, 65–72;—encounters with, 59–65;—social harms of, 67–68 Indian People’s Tribunal on Environment and Human Rights (IPT), 167–68 Indian Slavery Act (Act V, 1843), 135 Indo-China war (1962), 238 Indo-Pakistan wars (1965 and 1971), 238 Indo-Tibetan Border Police Act, 1992, 422 Industrial Disputes Act, 396, 399 Industrial Revolution, 43, 454 industrial worker, 454 Ingress Ordinance, 235 Inner Line Regulation, 258–59 institutionalised inequality, 123 insurgency, 452; counterinsurgency, 248, 268, 270, 273–74; and crime, distinction, 453 Intensive Family Preservation Program, 202 intent, consequences and knowledge, 314–18 inter caste marriages, 340–41 internally displaced, 281 International Covenant on Civil and Political Rights, 1966, 374 international human rights, 468 International Initiative on Justice, 109 international law, xii, 458, 468, 470 Irani, Nowshirwan, 60, 62–63 Irish immigrants to England, 15 Iyer, Justice Krishna, 92, 300, 415–16, 418–19 Jail Manual, 123, 434 jail sentence, 358 Jalianwala Bagh massacre, 235

488


Jan Sunwai, 322–24 Janata Dal, 240 jati panchayat, 98 Jayalalitha, J., 327 Jayaramulu, 84 Jessica Lal case, 310 Jethwa, Y.K., 174 Jha, T.K., 398 Jhajjar, 468 Joboti Devi, Laishram Ningol, 260 Joginder Kumar vs State of U.P., 302 Joint Parliamentary Committee (JPC), 90, 414 Joseph Peter vs State of Goa, Daman and Diu (1977), 417 Judicial Committee of Privy Council, 124 juridical democracy, xi justice promised, but not delivered, 149–52 Juvenile Court Training Curriculum, 202 juvenile delinquency, 42, 195–98, 202–03 Juvenile Justice (Care and Protection) Act (2000), xv, 184, 186, 190, 196, 200, 211–12, 298; (2002), 199–201 Juvenile Justice Board, 196 juvenile justice system, 196, 201–2, 212 Kailasam, Justice, 418 Kanpur Bolshevik Conspiracy Case (May 1924), 236 Karamchedu, 466–67 Karnataka Prohibition of Beggary (Amendment) Act (2002), 20 Kartar Singh vs State of Punjab, 243 Kashmir, 466 Kashmiri women, 106–08; sexual violence against, 106–7 Katara case, 310 Kedia Distilleries, 398–99 Kehar Singh and Others vs State, 375–77, 384 Keishing, Rishang, 265 Kerala Police Manual, 1970, 171 Khajjan Chand vs Emperor (1926), 125 Khaleque, Abdul, 245 Khalistan movement, 244, 421 Khan, Muhammad Zafrullah, 260 Khanu vs Emperor, 55–56 Khap Panchayats, xvi, 331ff; function, 338–40; and modern law: a contradiction, 348–50; structure, 336–38 Khatoon, Hussainara, 310 Khatri vs State of Bihar & others, 303–04

Khet Mazdoor Sangh, 241 kidnapping, 193 kinship relations, 92–94, 289, 460 Koel Karo dam, 167, 172 Koel Karo Jan Sangathan, 172 Koravars, 13 Koshal, A.D., 420–21 Kuki National Assembly, 264 Kuki(s), 277 rebellion, 260; women, 276 Kunzru, H.N., 262 Labouchere Amendment, 55–56 labour laws, 454 labour unrest, 461 labouring poor, 43–44 ladki bhagana, 297 Lajpat Rai, Lala, 234 landlessness, 134, 153 lascivious propensities of man, 91–92 Law Commissions of India, 83, 90, 105, 185, 227, 243, 358, 378, 412–14 legal status of the child, 183–84 legitimation crisis, 249 Leikai, Lamabam, 260 lesbian, 50, 52, 66–67 life imprisonment, 412, 415, 420, 433–34 Lohana Vasantlal Devchand vs State, 56–57 lower race, 4, 7, 8, 16 Lubbock, John, 7 Macaulay, Lord Thomas Babington, 53, 56, 80, 83, 386 Madhya Pradesh vs Ghanshyam Singh, 426 Madras: Removal of Civil Disabilities Act (1938), 125; State Prisoners Regulation II (1819), 233; Suppression of Disturbances Act, 241 Mahars, 124 Mahila Sangham, 242 Maikanch incident, 174–76 Maine, Henry Summer, 365 maintenance, 131, 234, 459 Maintenance of Internal Security Act (MISA), 1975, 229–32, 239–40 Maintenance of Public Order Ordinances (1948), 238 Majlis Ittehadul Muslimeen, 89 Major, Andrew, 8, 13

Index Majumdar, Charu, 402 male lineage, 153 maleficence, 88 Malimath Committee. See Committee on Reforms of the Criminal Justice System Manipur, 466, 469; aliens, 258–63; defiant, 263–67; from negotiations to violence, 267–71; non-violent agitation against British oppression, 272; sex ratio, 272; State Constitution Making Act (1947), 263; women, 271–78 Manipur National Union, 264 Manipur People’s Liberation Front (MPLF), 271 Maniruddin, 30 Manorama, Thangjam, 257, 274–75 manual scavengers, 131–34, 138–39; scavenging, 140; law on (1993), 131–35 Mao Zedong, 402, 404 Maoist Communist Centre (MCC), 245 Maoists, 409 marital rape. See rape; marital marital relationships and kinship, 64 marriage, institution of, 52, 62, 349–50; minimum age, 90 Martial Law Ordinance (I to VI), 1919, 235 Maru Ram and Others vs Union of India and Others, 420 masculinity, 91, 106 mass media, 466 mass violence, xi. See also Sikh massacre, Gujarat Mathura case, 78–80, 89–90, 105, 106, 111 Mayhew, Henry, 5–6, 10, 21 Mazdoor Kisan Shakti Sangathan (MKSS), xvi, 315–16, 322–24, 325–28 McGuire, Thomas, 36 mechanisation of agriculture, 143 medical jurisprudence, 57–59, 79 Meena, Rama, 158 Meerut Conspiracy Case (March 1929), 236, 382–83, 404 Meghalaya Preventive Detention Act, 248 Mehnadikheda incident, 167–72 Mehta, Ashok, 265 Meira Paibi (torchbearers) movement, 247, 273–78, 469 Meiteis, 277–78 Melavalavu Panchayat Board, 385–88 Menaka Devi, Takhellambam, 275

489

Menon Committee, 438 migrants, 14–16 militarisation of governance, xii Minawalla, D.P., 58–59, 60–62, 64, 68 minorities, 65, 69, 71, 125, 203, 243–45, 267, 391–94, 406, 463 Mirro vs Emperor, 54 Mirza Akbar vs King Emperor, 384 Mishra Commission of Inquiry, 1952, 174 Mishra, P.K., 174 Mithu vs State of Punjab (1983), 420 Mizoram Peace Accord, 107 modern savages, 7 modesty, 91, 92, 105 mofussil courts, 365 Mohammad Giasuddin vs State of A.P. (1977), 417 Mohibannisa Bibi, 29 Moplah rebellion (1897), 234 moral displacement, 86 morality, xvii, 6, 72, 93, 297, 331 Moyon Naga Council, 276 Moyon Sanuw Ruwrkheh (MSR), 276–77 Mukhopadhyay, Priyanath, 33–35, 42 Muktadar Commission of Enquiry, 78, 80, 83–89 Multi Systematic Therapy and Functional Family Therapy, 198 Mumbai riots, 1993, 392, 463 Murtuza, 84 Muslim: community, 83–89; extremism, 391–92; violence against women in Gujarat (2002), 79, 108–09, 112 Naga Hohos (tribal councils), 277 Naga People’s Movement for Human Rights (NPMHR), 270, 277–78 Naga Women’s Union (NWU), 276–77 Nagaland Security Regulation (1962), 240–41, 248 Nagi Reddy conspiracy case, 232 Namdeo Dhasal, 471 Narayan, Jayaprakash, 239 Narcotic Drugs and Psychotropic Substances (NDPS) Act, 298, 421, 422, 427, 433 Naresh vs State of Haryana, 152 National Campaign on Dalit Human Rights (NCDHR), 144 National Commission for Safai Karamcharis, 133; Act (1993), 133, 138

490


National Commission for Scheduled Castes and Scheduled Tribes (NCSCST), 144, 152 National Commission for Women (NCW), 80, 185, 192, 208 National Democratic Alliance (NDA), 422, 438 National Human Rights Commission (NHRC), 80, 144, 152, 157, 176, 188, 406, 432–33 National Police Commission, 176, 463 National Policy on Criminal Justice, 410 National Security Act (NSA), xv, 248, 263, 268 National Security Guard Act (1986), 422 National Socialist Council of Nagaland (NSCN), 268, 270; Khaplang faction, 277 nationalistic fundamentalism, 143 Naujawan Bharat Sabha, 236 Naxalite movement, 237, 305, 402–04, 405, 410 Nayyar, Sushila, 282 necessity, doctrine, xv necrophilia, 465–66 Neelabati Behera vs State of Orissa & others, 303 Nehru, Jawaharlal, 125, 237, 282–83 Nehru, Rameshwari, 282 Neogy, K.C., 282 Nithari incident, 2007, 307 Niyogi, Shankar Guha, assassination, 394–401 Nizamat Adalat, 361–62 nomadic tribes, 3–6, 11, 13, 16, 17–22 nomadism, 4–5 nomads, 3–6, 12, 14–15, 18, 22, 335 Non-Cooperation Movement, 461 non-discrimination, xii, 154 non-governmental organizations (NGOs), 68, 144, 187, 201, 205–6 non-working vagrant, as shirker and criminal, 16–17 Norisundari, 33 North East Network, 107 Northeast India: electoral politics, 271; sexual violence against, 106–07. See also Manipur Nowshirwan vs Emperor, 60, 62–63 Nupi Lan movement (1939), 260, 272–73 O’Dwyer, Michael, 235 occupational mobility, 14 offender, the victim and the community, 323 Oinam massacre, 270 oral sex, 56, 71

oral tradition, 307 outing, 69 paan, 29, 31, 463 Paite Union, 264 Panchayats (Extension on the Scheduled Areas) Act (1996), 144–45 Pant, Gobind Ballabh, 262, 265 parens patriae, 281ff Parenting Wisely model, 198 Parliament attack case (2001), 428 Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes, 144, 159 participatory justice, 326 Partition of Indian subcontinent, 79, 111 Parvathipuram Conspiracy, 403, 405 Passport Act, 433 Patel, Kamlaben, 288 Patel, Sardar Vallabhbhai, 238, 393 patriarchal delegation, 79, 89, 102, 111 patriarchy, xiii, 30, 38, 42, 45, 79, 81, 90, 92, 97–98, 105–6, 112, 143–44, 154, 271–72; prerogative in post-partition India, 281ff; between state and nonstate actors, 97 peasant movements, 461 penal settlement, 236, 358, 453–54 penal strategies and political resistance in colonial and independent India, 227ff penalisation of child labour, 184 People’s Liberation Army (PLA), 257, 268, 270 People’s Revolutionary Party of Kangeipak (PREPAK), 268, 271 People’s Union for Civil Liberties (PUCL), 69–72, 172–73, 175, 177, 241; See Asiad Workers Case People’s War Group (PWG), 245, 402 Peoples Democratic Revolution, 405 Permanent Court of International Justice, 393 perpetrator–victim relationship, 147–48 pervasiveness, 93 perversion, 49, 54–55 Peshawar Conspiracy Case (1922–27), 236 Philip, Kavita, 6, 10 physiognomy, 58 pickpockets, 21, 28, 42 pimps, 84–86, 88–89, 101, 188–90 Planning Commission, 166 Police Act, 372

Index police, policing, 106, 109, 158, 210, 362–64, 429; the borders of normal sexuality, 71–72; in colonial rule, 461–63; harassment of a transgender sex worker, 69–70; judicial and adjudicatory functions, 202–3; minority relationships, 50; participation in violence, 109; powers to recover abducted persons, 284–85; of same-sex sexual relationships, 64; surveillance, 30–31 political: economy, 89; prisoners, 457, 470; resistance, penal strategies to deal with, xv, 51, 227ff; violence, xiii politics, xiii, 9, 65, 68; of masculinity and power, 96; of otherhood, xiii; of sovereignty, 327 poor, 3, 4, 5–6, 12–16, 18–19, 21–2, 40, 43–45, 71, 111, 143, 150, 195, 198, 232, 245, 295, 297–301, 307, 310–11, 315, 320, 325, 347, 357, 406, 437, 452–53, 455, 461, 463, 470 pornographic voyeurism, 92 Portuguese sailors, 38 positivist criminology, 49 Post-Traumatic Stress Syndrome (PTSD), 187, 189 Pothang system, 260 poverty, xii, 10, 21, 28, 43, 135, 143, 147, 195, 320 power relationship, 96, 147, 323 powerlessness, 469 Praja Socialist Party (PSP), 265 Prem Shankar Shukla vs Delhi Administration, 300 Premananda, Swami, 78, 99–102, 106, 112, 430 premature release, 431–32 press freedom, 374 Prevention of Blackmarketing Act (1980), 437 Prevention of Dowry Act, 366 Prevention of Food Adulteration Act (1954), 415, 437 Prevention of Seditious Meetings Act (1917), 462 Prevention of Terrorism Act (POTA), 2001, 228, 229, 238, 242–50, 366, 374, 421, 466; Repeal Act, 229, 242, 245, 247 preventive crisis management, xiii Preventive Detention Act (PDA), 1950, 230, 232, 238, 239, 265 preventive detention and political dissent, 401–6 Preventive Detention System (PDS), 228, 268 primitive tribes of colonies, 5–6 print culture, 357, 370 prisoner’s rights, 431 Prisoners Act, 434

491

Priyadarshini Mattoo case, 310 Probation of Offenders Act, 1958, 413 profound legal oppression, 12 property law, 456 prostitute(s), 21, 28–29, 31–32, 41, 45, 84–86, 89–90, 109, 111; child prostitutes, 186, 188, 190–91, 201, 210; turned into criminals, 37–40; turned-serial killer, 40–42; forcible medical examination, 39 prostitution, 17, 28, 29, 31–32, 40, 45, 84–89, 106, 149, 186, 456–58; and child prostitution and trafficking, 188–90 prostitute(s), 21, 28–29, 31–32, 41, 45, 84–86, 89–90, 109, 111; child prostitutes, 186, 188, 190–91, 201, 210; turned into criminals, 37–40; turned-serial killer, 40–42; forcible medical examination, 39 prostitution, 17, 28, 29, 31–32, 40, 45, 84–89, 106, 149, 186, 456–58; and child prostitution and trafficking, 188–90 Protection of Civil Rights Act (PCRA), 127–29, 131, 138–39, 149, 388–90, 415, 421 Protection of Women from Domestic Violence Act (2005), 460 psychological: aspects of confessions and interrogation, 360; consequences, 188–89; needs of sentenced juvenile offenders, 197–99; trauma of victimisation, 187 public distribution system (PDS), 94 public hearings, 322–26 Public Interest Litigation (PIL), 133, 150 public responsibility and responsiveness, 160 Public Safety Act, 246 Public Safety Ordinances (1948), 238 public space, masculinisation, 275 punishment and sentencing, 359, 368–72, 376, 378, 417, 418, 470; in early criminal law, 411–19; post-1980, 419–31; reformative aspect, 430 Punjab: criminal tribes, 8; Disturbed Areas Act (1983), 240–41; Martial Law, 456 Quadri, S. Shah Mohammed, 372, 429 queer communities, 50–51, 65–67, 69–70, 72; rights movement, 49–50, 65, 72; sexualities, 52–53, 72; Subaltern, 64–65; theory, 48 Qutubuddin, 84, 86, 88 racial discrimination, racism, 6, 145, 155, 468 racialisation of the Irish, 10–11

492


Rajendra Prasad vs State of Uttar Pradesh (1979), 418 Rajyalakshmi, Kandukuri, 459 Ramabai, Pandita, 459 Ramamirthammal, Muvalur, 459 Ramaswamy, Justice, 152 Ramayana, 7 Rameeza Bee case, 78–80, 83–89, 90, 105, 111–12 Rao, KVL Narasimha, 405 Rao, Subba, 385 rape, 54, 78, 80–83, 91–93, 96, 99, 101, 105–7, 139, 147, 152, 158, 184, 186, 210, 274, 362, 425, 430, 432, 465; by blood relations, 93–94; custodial, 80, 83, 90–91, 465; gang rape by police, 83–89; ideological condoning of, 92; justified, xvi; marital, 80–83, 111–13, 460; and trafficking, 32; using economic domination, 90; victim-survivors, 90, 102, 152, 157; a violation of the right to life, 94, 102–06 Rapid Action Force (RAF), 109 Ratan Mia vs State of Assam, 60, 63–64 Ratansi, 60, 62–63 Ravji vs State of Rajasthan (1996), 426 reality monitoring, 204 recovered women, 111, 282–83, 286–88 recovery operation, 282 recovery, xvi, 33, 41, 69, 175, 282,. 286–88; forcible, 289–90 Red Fort attack case, 428 Reddi, Muthulakshmi, 459 Reddi, S. Veernarayan, 403–04 Reddy, O. Chinnappa, 418 Reddy, T. Nagi, 405 reform and rehabilitation, 415 refugee rehabilitation and resettlement, 281 regulation, 44, 50, 52–3, 79, 191, 193, 233–34, 237, 249, 258–9, 285, 358, 360, 361–62, 460 reintegration, 110, 182, 184, 187, 188–90, 198, 199–202, 211, 212, 325 relativism, 328 religion, 4, 7, 38, 88, 100, 127 remission, 412–14, 420; and the role of the executive, 431–36; Supreme Court limiting powers, 433–36 repression, xi, xii, 43, 167, 232, 234, 242, 244, 266, 270, 271, 455, 258, 460 Resettlement of Displaced Persons (Land Acquisition) Bill (1948), 281 responsibility notion, 356, 396

restitution, 429–31 restoration, 78, 90, 94–98, 112, 187–88, 201–2, 239, 240, 282, 402, 437, 469 re-victimisation, 157, 182, 461 Revolutionary Joint Committee, 271 Revolutionary People’s Front, 271 Richardson, David, 8–9 rights, 73, 160–61, 373–74, 386 rigorous imprisonment (RI), 54, 61, 64, 82, 274, 411, 426, 430, 432 Rout, Pramila Kumari, 92 Rowlatt Act, 235 Roy, A.K., 401 Rukmabai, 459 rule of law, xi, xiii, xvii, 143, 149, 156, 159, 165, 232, 249, 331, 355ff, 382ff, 393, 401, 406, 451–56 rural development, 322–26 rural violence, 453 Rytu Coolie Sangham, 241 saathin, 94–95 Safai Karamchari Andolan, 133–34 Sakshi vs Union of India, 206–7 Sakshi–Human Rights Watch, 144, 206 Salvation Army, 16 same-sex desire and the judicial archive, 59–67 same-sex marriage, 66; and partnership laws, 49 Samuelson, James, 7 Samvada, 185 Sanajaobi Devi, Irengbam Ongbi, 260 sanitation, 44 Sankalinga Nadan vs Rajarajeshwari Dorai, 124 Sarabhai, Mridula, 282 Sardar Sardul Singh Caveeshar vs State of Maharashtra, 385 Sarkaria, Justice, 418 sati, 44, 156 Sati (Amendment) Bill (2006), 422 Satyanarayana, Medadhi, 403 scheduled castes (STs), 98, 103, 123, 126–31, 137–40, 142, 144–45, 147–8, 149, 151–52, 156–59, 336–37, 341, 346, 385–90, 421, 423, 433, 463 Scheduled District Act (1874), 258 scheduled tribes (STs), 98, 103, 126, 128–31, 137–39, 142, 144–45, 147–48, 149, 151–52, 156–59, 385–86, 388–90, 421, 423, 427, 433, 463

Index Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989), 103, 128–30, 137–39, 144, 145, 147–48, 149–51, 156, 158, 306, 388–90, 421, 423, 463; failure in implementation, 150–52 Scheduled Castes and Scheduled Tribes Protection Cells, 130–31, 150 schooling systems, 197 Secunderabad Conspiracy Case, 405 Sedition (Rowlatt) Committee (1918), 235 Select Committee, 366, 368–69 self determination, xiii self-esteem, 129 self-incrimination, 374 self-interest, 365 Sen, A.P., 418 Sen, Haimabati, 459 sentencing, 94, 152, 199, 411, 412, 415–17, 419–20, 424–26, 429, 436–38; coherent sentencing, lack in courts, 415 Seth, Vikram, 66 Sevaka Perumal vs State of Tamil Nadu (1991), 425 sex work, 457, 458 sexual abuse, xv, 105–06, 182–91, 198–99, 205–12 sexual appropriation and use of violence, 106, 111 sexual assault, xiv, 78ff, 184, 206, 208, 437, 469; and the law, 78ff; and sexual intercourse, distinction, 81 sexual diseases, 45 sexual enchantress, xiv sexual exploitation, 457 sexual harassment, 71, 97, 113, 143; at workplace, 113 sexual intercourse, 55–57, 60, 62, 80–82, 90, 94, 101, 105, 111, 184–85, 357; forcible, 62; within marriage, 185 sexual minorities, 69, 71, 203 sexual offences, 81, 425 sexual relationship, 64–66, 73 sexual violence, 79, 98, 101–3, 105, 108–9, 111, 113, 147, 149, 152, 153, 154, 156, 158, 184 sexualisation, 48, 189, 191, 199 Shah Commission Report, 230–31 Shah, Moolchand, 397–98 Shaikh Abdul Azees vs State of Karnataka, 417 Sharmila, Irom Chanu, 274, 277–78, 469 Shaw, Bishnu Deo, 418 Shaw, Fagu, 401 Shillong Agreement (1975), 231 Shinde, Tarabai, 459

493

Shivaji vs State of Maharashtra, 415 shock therapy, 416 Sikhs massacre (1984), xii, 110, 391, 463, 466, 469 Simplex Group, 395–98 Singh, Ajit, 234 Singh, Digvijay, 244 Singh, Makkan, 401 Singh, Sant, 261 slavery, 122, 134–38; law (1843) to law of bonded labour (1975), 134–38 slum-dwellers, 3, 44 Smith, Adam, 376 smuggling, 30, 42 social and economic rehabilitation of the victims, 150 social change, 73 social cohesiveness, 142 social conflicts, 154 social consequences of the crime, 158 social contract, 295 social disabilities, 127 social disapprobation attached to sexual relationships, 61 social discipline, 40 social evolution, and nomadism, 4–5 social exclusion and criminal law, xv, 121ff, 143 social factors, 142 social hierarchies/inequality, 142, 335 social impact of the law, 64 social inequality, 146, 335 social injustice, 142 social mobility, 144 social movements, 325–26, 456, 458 social offences, 423 social oppression and economic exploitation, xiv, 29 social order/norms, 157, 196, 331, 395, 338 social relations, 9, 48 social role, xiv social sanctions, 340–41 social security, 286 social systems, 66 social violence, 392 socialism, 395 Socialist Party of Manipur, 264, 267 socially excluded, 147 socio-cultural domination, 37 socio-cultural reactions to sexual abuse, 188 socio-economic conditions, 128, 142, 146–47, 165

494


sociology, 50 socio-psychological make-up of women victims of colonial Calcutta, 32 sodomy, 49, 62, 68, 70; as a crime, xiv; laws, 66; with nonconsensual sex, 54–55; to the sodomite, 57–59 soliciting, 87 South African Constitutional Court, 66 sovereignty, xiii Special Juvenile Police Unit, 196 Srikakulam, 402 Srikakulam Girijan Revolt, 403 Srikrishna, Justice, 392 Stand Still Agreement, 263 state and police, 106–07, 139, 142, 370, 409; and the abducted women/persons, 284–89; accountability, 155; appropriation of law, 452–54; crimes (crimes of political nature), 227; and non-State actors, 154, 157; repression on Adivasi, 167–76; and village communities, relation, 333–34; violence, 237, 256, 265, 461, 465–66, 470; and Section 377 of IPC, 68–70 State of Karnataka vs Appa Babu Ingale, 152 State of Kerala vs Govindan, 56 State of M.P. vs S.S. Trivedi, 303 State of Rajasthan vs Mirthaya Singh Thakur, 158 State Prisoners Act (1850), 233–34 State Reorganisation Committee (SRC), 265 State vs Laxman Kumar (1985), 424 Stephen, James, 375–77 stigmatisation, 190, 201 Straight, Justice, 57, 59 street children, 195 street performance, 21, 28 Students Islamic Movement of India (SIMI), 245 subaltern: constitutionalism, xiii; mobilisation, 455; women’s perspective, 142ff Sultana, 452–53 Sulochana, 466 Suppression of Immoral Traffic in Women and Girls Act (1956), 423, 457–58 surveillance, 30–31, 39, 44, 235, 371, 454 survivors, 78, 84, 86, 90, 98, 101, 106–12, 153, 155, 157–58, 160–62, 182, 187–90, 206, 210–11, 314, 319–21, 466 Swadeshi movement, 261, 461 T.K. Gopal vs State of Karnataka, 54 Tajmahomed, 60–62, 64, 68 Tangkhul Nagas, 259, 264

TANSI case, 327–28 Tapkara Shaheed Sthal incident, 172–74 Tarkunde Committee, 463 Telangana movement, 237–38, 241, 245, 457, 403, 470 Territorial Council Act, 265 terrorism, 428–29 Terrorist Affected Areas (Special Courts) Act, 1984, 421 Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985, 228, 242–46, 248–50, 366, 371–72, 421, 428–29, 433, 434 The Descent of Man, 5 third party risk, 309–10 Thomas, J.F., 81 Tilak, Bal Gangadhar, 455, 470 trade liberalisation and privatisation, 143 trade unions, 395–98, 404, 454 trafficking, xii, xv, 32, 188–91, 457 Trailokya, 30, 40–42 travellers, 3, 10, 12, 45 treason law, 372 tribal movements, 245, 437, 466 Tripura Security Act, 248 Tukaram vs State of Maharashtra, 89 two finger test, 79 Tyagi, Mahavir, 283–84 unemployment, 195 Union Carbide Corporation (UCC), USA, 319–20, 328 Union Carbide India Limited (UCIL), 316–17, 319–22 United Legislative Front, 274 United Nations (UN), 104, 107, 150, 198; Convention on the Elimination of All Forms of Racial Discrimination, xii; General Assembly (UNGA), 104; Rules for the Preservation of Juvenile Delinquency (Riyadh Guidelines), 203; Rules for the Protection of Juveniles Deprived of their Liberty (1990), 196, 200; Security Council (UNSC), 243; Special Rapporteur on Violence against Women, 156; Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (The Beijing Rules), 196, 200 United Progressive Alliance (UPA), 246–47, 438 United States of America; 9/11, 243, 428; juvenile justice system, 201–2; Victims Assistance Workers, 210 United Women’s Forum, 107 Universal Declaration of Human Rights, 1948, 104, 374 Unlawful Activities Prevention Act (UAPA), 1967, 229, 238, 248; 2004, 242–47, 248, 249, 421 unlawful association, 372, 383

Index unlawful compulsory labour, 122 unnatural sexual offences, 51, 53–56, 60, 70 Untouchability (Offences) Act (1955), 127–31, 138–39 untouchables untouchability, xii, 122, 123–26, 131, 135, 136, 138–40, 149, 154, 388, 425; from law (1955) to atrocities law (1989), 127–31 urban middle class, xiv urban refugees, 281 urbanisation process, xiv, 42 vagabond, 4–5, 10, 16, 21 vagabondage, 15 vagabond savage, 6–8 vagrancy, 10, 12–13, 14, 17, 19–20, 465 vagrants, 3–6, 10; colonial migrants as, 14–16; in European societies, 18; gypsy as, 11–14; non-working as shirker and criminal, 16–17 Van Suraksha Samiti (VSS), 168 Vedas, 7 Veerappan, 428 venereal diseases (VD), 38, 45 victims and villains: the construction of female criminality in colonial Calcutta, 28ff victorian society, 13 Vidarbha, 245 violence, 153–55; in sexual conduct, 91 Virbhan Singh and Anr vs State of Uttar Pradesh (1983), 424 Vishakha case, 113 Vithyatlul Commission of Inquiry (1971), 462–63 Wadhwa, D.P., 429 Wali Ullah, 237 Wasifannisa Bibi, 29 Watson, E., 363

495

Watsu Mongdang, 270 Weimar Constitution of the Third Reich, 262 Weiner, Martin, 6 welfare, reform, rehabilitation, 50 Wellesley, Marquis, 134 wellness and personhood, 181ff West Bengal: Security Act, 248; Security Bill (1947), 238 widowhood, enforced, 459 Wildlife (Protection) Act (1972), 171 willful laziness and idleness, 18–19 Williamson, Thomas, 45 Wilson, Judge, 82 witness, 362–63 women, women’s: consent, 105; inherent bashfulness, 91; movements, 423, 466; organisations, 241; rebels in Northeast, 260, 264, 271–78. See also Meira Paibi; rights, 161, 459; victim-survivor of crime, 147–48, 161–62; violent crimes against, 426; vulnerability, 144, 155 Women’s Development Programme (WDP), Rajasthan, 94–98 working class, 395, 454–55; woman, 88, 97, 111, 113 World Conference on Human Rights, Vienna, (1993), 105 World Conference on Women, Fourth, Beijing, (1995), 105 World War II, 138, 261, 263 Yandaboo Treaty (1826), 258 Zaidi, B.H., 262 Zahira Sheikh, 310 zamindars and talukdars, 135 Zeliangrong Movement (1930–32), 260 Zeliangrong Union, 264

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