Vimukta Day Lecture by Justice Abhay S. Oka

22 September 2024

[Note: This transcript is edited for clarity and coherence of the reader. Please refer to the lecture (video) available in case of doubt or to quote.]

Good Evening! Founders of CPA Project, Volunteers, Ladies and Gentlemen. Many of you are already aware that 31st August is celebrated as Vimukta Jatis Day in India by the Denotified and Nomadic Tribes (DNT) community. This day marks the repeal of the draconian Criminal Tribes Act of 1924 through the Criminal Tribes Act Repeal of 1952, which came into force on 31st August 1952.

The Criminal Tribes Act of 1871, enacted by the British colonial administration, was the first of its kind. It was replaced by the 1911 version, but both were amongst the most oppressive laws of the British era. These acts marked entire communities, primarily nomadic tribes, as "criminal," condemning countless individuals to a life of stigma and control.

The 1871 Act gave local governments the authority to recommend to the Governor General in Council that a tribe, gang, or class of people be declared a Criminal Tribe. The Governor General could then declare them as such, and a register of individuals belonging to the declared tribe would be prepared. Local governments were then empowered to confine members of the declared tribe to specific areas, effectively stripping them of any freedom or dignity. Without trial or conviction, individuals were branded as criminals simply by association, depriving them of the chance to live a dignified life.

Even though the Act was repealed, it is disheartening to note that the stigma placed on these communities has not completely faded. Today, 75 years after the Constitution of India came into effect, the scars of these oppressive laws are still visible. The most pressing challenge we face is the mindset, particularly within the police force and society at large, which has not evolved to shed these old prejudices. It is said that more than 120 million individuals belong to denotified tribes, underscoring the magnitude of the problem. I have personally reviewed FIRs related to offenses like robbery, where the community of the accused is mentioned, indirectly implying that they belong to a "criminal" tribe. 

I commend the young individuals working on the Criminal Justice and Police Accountability Project. Their motto, "Justice begins when inequality ends," is deeply meaningful and challenges all of us in the justice delivery system to reflect on whether, after 75 years of our Constitution, we are truly delivering justice. Their efforts aim to end casteist policing and the criminalization of marginalized communities—a cause we all must support.

Though laws from 1871 and the subsequent Acts have been repealed, the criminal label imposed on entire communities has not fully disappeared. Most members of these denotified tribes continue to face social and economic hardships, which hinder their access to justice. Often, they suffer silently at the hands of the authorities, simply because of the stigma attached to their communities.The Habitual Offenders Act in some states has only added to their woes. The wounds inflicted by the 1871 Act and similar legislation have not yet healed. Some may disagree with this view, but it is undeniable that the scars of injustice remain and continue to deprive these communities of their right to live with dignity, a right guaranteed under Article 21 of the Constitution of India.

One of the core tenets of criminal jurisprudence is the presumption of innocence, which holds that every accused person is presumed innocent until proven guilty beyond a reasonable doubt by a competent court. This presumption is rooted in Article 21, which guarantees personal liberty. While some special legislations may create exceptions, the presumption of innocence still holds true for the majority of criminal laws.

However, marginalized sections of society, particularly those targeted by law enforcement, often do not benefit from this presumption. They find it difficult to navigate the legal system and access remedies. Therefore, the first step should be to ensure that the doors of the courts are genuinely open to these marginalized communities. The Legal Services Authorities, established under the Legal Services Authorities Act of 1987, must take the lead in this effort. We also need to sensitize the police force and judiciary on these issues. Through police training institutes and judicial academies, we can raise awareness about the plight of these communities and ensure that they are treated with fairness and dignity. 

Data generated by our court systems provides ample evidence to support the view that criminal behavior is not linked to religion, caste, or community. As someone who has dealt with a vast number of criminal cases over the years, I can confidently state that criminality has no inherent connection to a person’s background. The hypothesis which I repeat -

"Criminality or criminal tendencies have nothing to do with religion, caste or creed of any human being. Branding an entire community as criminals is not only unconstitutional but also violates Articles 14, 15, and 21."
 

Unfortunately, even today, certain marginalized groups continue to be branded as criminals. This labeling creates conditions where individuals who are not criminals, and who have no criminal intent, may be driven to illegal acts out of sheer necessity. As we approach the 75th anniversary of the Constitution, it is time for all citizens to uphold their fundamental duty, as enshrined in Article 51A, to abide by the Constitution and respect its ideals. One does not need to read all 395 articles to understand the essence of the Constitution. The Preamble alone conveys the core ideals—justice, liberty, equality, and fraternity.

To think that a particular community is inherently criminal goes against these constitutional ideals. We need to establish robust systems that make data on arrests of marginalized communities, especially denotified tribes, available in the public domain. This will enable NGOs and legal services authorities to provide timely assistance. No one should languish in jail simply because of the stigma attached to their community. The aim of the constitution is to provide social, economic and political justice to all. Therefore, the injustice done to these communities in the British regimes can be redeemed only if we are able to render economic justice to these communities by ensuring that they do not remain economically backward. They will social justice only when the stigma attached to their community completely goes.

After accepting the invitation to speak on this occasion, I reflected on how difficult it is to undo the damage caused by draconian laws. Even though it has been over 70 years since the repeal of the Criminal Tribes Act, its effects still haunt us. This is a lesson we must carry with us as we safeguard against future injustices. Finally, I commend the efforts of the Criminal Justice and Police Accountability Project. These young individuals are working with a vision of creating the India that Dr. B.R. Ambedkar envisioned. As Dr. Ambedkar said, our battle is not just for freedom, but for the reclamation of human dignity.

Thank you for giving me this opportunity to speak today. I hope the project continues its important work, and I wish you all great success in your efforts.