The Uttar Pradesh government is entangling Dalits, Adivasis, who demand land rights or protest displacement, in cobwebs of criminality by using its version of a colonial law meant to unconstitutionally exile and humiliate ‘goondas’.
FLAVIA LOPES & JOHN SIMTE
Mumbai/New Delhi: The Uttar Pradesh (UP) government has filed more than 25 criminal cases against a 65-year-old Dalit farmer called Shyamlal Paswan, ever since he sought formal rights to the land he farmed.
Under the Forest Rights Act, 2006, Shyamlal (who uses only his first name) has the right to make this demand. He is one of India’s 150 million “forest dwellers”, who can make a claim to get rights on land they farm or live on or both.
But until they get these rights—granted thus far to 13.13% of 40 million hectares nationwide, according to a 2020 estimate made by India’s ministry of tribal affairs—people like Shyamlal are regarded, under a colonial-era, 93-year-old forest law, as illegal squatters.
Shyamlal’s mustard farm of three bighas (0.034 acres) is the size of a tennis court. This is the land his family has tilled for generations, but it falls in an area officially listed as a forest, which means he is violating the Indian Forest Act, 1927 as it prohibits cultivation of land within a notified forest area.
The cases he is charged under include illegally occupying forestland by building a hut, cutting trees from a forest, destroying saplings planted by the forest department, scuffling with forest rangers and farming on forest land.
But three cases against Shyamlal go a step further.
They accuse him of being a “goonda (hoodlum)”, a “history sheeter” and belonging to the “bhu-mafia” (land mafia). By an order passed in 2006 by a district magistrate, under the Uttar Pradesh Control of Goonda Act, 1970, Shyamlal was banished from the district for six months.
The order never took effect because Shyamlal got it stayed from the divisional commissioner in 2016. But it inconveniences and harasses him. He’s forced to report to the police for an hour every week, making him late for his job as a labourer—his farm income isn’t enough to support his family of five—and he must travel 80 km to contest the cases against him.
Under the goonda Act, a district magistrate can label anyone a goonda and banish them from the district for up to two years, or detain them or ask them to report regularly to the police. The law allows magistrates to use any evidence to determine if someone is a goonda, without following the standards set under the Indian Evidence Act, 1872.
The goonda Act has been invoked in several land conflicts in UP in recent years (here, here and here), including against farmers protesting dams and power plants and against forest-dependent people struggling to get legal rights on their lands.
In recent times, Tamil Nadu (here, here and here) has also used the goonda law to quell conflicts over land. In September 2020, the Government of Gujarat passed its goonda law, similar to UP’s goonda Act.
‘These Law Are Tools To Annihilate Struggle’
Booking protesters under the goonda Act is a way to criminalise legitimate demands, said Vinod Pathak, a lawyer in Sonbhadra with the All India Union of Forest Working People, of which Shyamlal is a member.
“The only pattern in the use of these laws is state control over what they find inconvenient and a nuisance to public order,” said Usha Ramanathan, a legal researcher who studies the jurisprudence of law, poverty and rights
“Laws like these are tools to annihilate struggle, when the state cannot make the people agree to their decisions,” said Vincent Manoharan from the National Campaign on Dalit Human Rights, an advocacy.
The Supreme Court had struck down a similar goonda law in Madhya Pradesh in 1960 for violating the fundamental right to move freely in the country. But the versions that exist in UP and other states continue to be enforced, uncontested in higher courts.
We e-mailed a questionnaire on 4 December to the home department of the UP government seeking comment on accusations that the law was being misused to crackdown on political activity. We will update this story if or when a response is received.
A Colonial Law Redeployed In Draconian Fashion
UP’s goonda law defines a goonda as someone “generally reputed to be desperate and dangerous to the community” or has cases filed against them under different criminal laws, such as the Indian Penal Code, 1860, and the Arms Act, 1959.
The word ‘goonda’ in the UP goonda law and other similar legislation can be traced to the Bengal Goonda Act of 1926. India’s colonial government enacted this legislation after the first world war to control migrants flooding into what was then Calcutta, in response to the anxieties of the elite and the influential, including the Marwari business community and the upper class Bengali bhadralok (Bengali well-educated social class).
The expansive definition of a goonda and related provisions of the law allow district magistrates to make sweeping assertions in their “show-cause notices”, which begin proceedings under the law. Ramanathan said goonda laws are “subjective and executive driven.” They start with “discretion and end into arbitrariness”.
In proceedings under this law, magistrates can rely on hearsay as testimony and police confessions (confessions made by accused before police under interrogation) as evidence. They are not bound, as we said, by the standards mandated by the Indian Evidence Act,1872 to protect the rights of suspects.
A suspect can present witnesses in her favour only with prior permission from the magistrate. Criminal statutes, such as the goonda acts, not only impose harsh punitive measures, including externment and preventive detention on accused, but also diminish their rights by making procedural exceptions to the protections afforded under normal criminal process.
“Even a small incident like ‘reacting’ to an attempt to evict from the property, can count as a criminal activity,” said Pathak, the Sonbhadra lawyer.
The UP law has a “good faith clause” that grants immunity to the district magistrate and the state government for any actions within the framework of the Act. Another clause bars judicial scrutiny of orders issued under the Act.
Struck Down By Supreme Court But Still Used
In 1960, a constitution bench of the Supreme Court in State of Madhya Pradesh vs Baldeo Prasad struck down the Central Provinces and Berar Goonda Act, 1946, on the grounds that the Act did not have a clear definition of a goonda and externment violated fundamental rights of freedom of movement and of residence guaranteed by the Constitution.
In 1999, the Allahabad High Court overturned a show-notice issued to a student activist in Jhansi under the UP goonda law, stating that the law should not be used “against mere innocent people” taking recourse to “democratic process to get their certain demands (sic) fulfilled”.
The court said that the law should be used “very sparingly” and only in “very clear cases of 'public disorder'”. If the provisions of the Act were “recklessly used” it could become “an engine of oppression,” the court warned.
But the use of goonda laws has continued and in 2015, the UP government even expanded the law to individuals previously charged under the Indian Forest Act, 1927, which would include forest-dependent people like Shyamlal.
Tamil Nadu’s goonda law also includes provisions to charge people previously charged for “forest offences”.
Such laws are used to criminalise a forest dweller’s traditional sources of livelihood, such as farming and gathering wood, said Tushar Dash, an independent researcher of forest-rights governance.
A 2014 report by the central government’s High level Committee on the Status of Tribal Communities in India noted that a “large number” of FIRs against people from the scheduled tribes were under laws like the Goonda Act(s), the Arms Act, 1959 and the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005.
“Persons charged with these offences are brought within the entrails of the criminal justice system,” the report said. As a result, many tribal people approach a court only to contest cases against them and not to assert their rights, it said.
How To Use The Law To Silence Protests
At Kanhar in Sonbhadra district, two people were arrested and charged under the goonda law in December 2014 for protesting against the Kanhar Dam. Similarly, activists were arrested under the act for protesting against the Meja and Karchana power plants in Prayagraj district in 2015.
In December 2016, the UP police charged two people under the Goonda Act for protesting against the Ghatampur Thermal Power Plant in Kanpur district. In all these places, several protesters were also charged and arrested under other laws, such as the The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, the Railway Act, 1989, the Indian Criminal Law Amendment Act, 1908 and the National Security Act, 1980.
The agitation dimmed after proceedings under the UP goonda law, said Ravi Pratap from the Bhartiya Kisan Union, a non-partisan farmers’ group. Leaders of the protests went into hiding after their release, he said.
It is typical for the police to file cases under the goonda law against those leading the struggle, said Roma Malik of the All India Union of Forest Working People, an advocacy.
“The idea is to send a message,” she said, accusing the State of deploying the goonda law in forest land conflict and “following a colonial legacy to suppress the democratic struggle of deprived sections”.
“We only implicate people under the goonda Act when there are more than three-four cases against them, which makes them a land-mafia (sic),” said Aryan Passi, public relations officer at the office of Sonbhadra' Superintendent Of Police.
Passi said that goonda Act cases often arise from conflicts between the forest department and the forest-dependent people, and the police are “forced to take action” under the Act because people persist in using forest land.
“No forest law says that you can cultivate on forest land without any documents on the land,” he said, referring to the colonial-era Indian Forest Act, which allowed states to take control over forests from its traditional inhabitants.
Why A Colonial Law Is Preferred To Indian Law
The Forest Rights Act enacted in 2006 was meant to undo “historical injustice” by giving legal recognition to land rights of “forest-dwelling” individuals and communities. But its implementation has been poor and marked by a lack of political will, said experts.
Meanwhile, state forest departments continue to punish forest dwellers under the 93-year-old Indian Forest Act. For such people, being charged under the goonda law is a punishing process.
Shyamlal was first charged under the goonda law in 2008 for building a hut and farming on forest land.
While his appeal was being heard by the Purvanchal divisional commissioner, in 2012 the magistrate again charged him under the Act. While that appeal awaited a verdict, the magistrate charged him again in 2018.
The current district magistrate of Sonbhadra, S. Rajalingam, said he could not comment on “administrative matters” and that the act is “precise” on who is a goonda and against whom it should be used. However, he also said that the use of Act “varies from case to case and from context to context”.
In 2016 the divisional commissioner overturned the magistrate’s 2008 order, saying that since Shyamlal was already charged under the Indian Forest Act, 1927, implicating him under the goonda Act for the same charges was “incorrect”.
In March 2020, the divisional commissioner closed the other cases saying that since his externment period was completed, there was no point to the appeal anymore.
“In very few cases people are persecuted under the goonda Act”, said Ramanathan, the legal researcher. It is a way, she added, to put people “out of commission”.
“Everyone—the land mafia, police, forest department, district magistrate— is trying to make my life difficult,” Shyamlal said.
Shyamlal said he is now reluctant to do anything that could trigger another charge under the goonda law. On 29 November 2020, people from the powerful Yadav community destroyed his mustard crops by bringing their cattle to graze there.
The police were there but only watched, Shyamlal said. Then the men came to attack him and his wife. Shyamlal, who is typically vocal against such intimidation, ran away. He later tried to report the case, but the police would not accept his complaint, he alleged.
Shyamlal had little hope they ever would.
(Flavia Lopes and John Simte are researchers with Land Conflict Watch, an independent network of researchers and journalists documenting ongoing land conflicts across India.)