Updated: Jun 21, 2020
Bhopal: Charan Singh remembers the days when the police routinely barged into his house late at night. They would, he alleged, take away household goods, a television, even utensils, as they investigated a theft.
More often than not, they would accuse Singh’s family, who would then be charged for the crime, said Singh, who is from a tribe called Pardhi, hunter-gatherer nomads collectively labelled ‘criminal’ by the British colonial administration in 1871.
It is a legacy that endures 149 years later in independent India, sanctioned by the law and enforced by the police.
“Earlier the police would barge into our houses and also arrest men in the family along with the belongings,” said Singh in Hindi. “Since 2019, none of this has happened but we still lock our door from outside and inside for fear of this happening again.”
The police were going by the book. Madhya Pradesh law allows police substantial power and little accountability in defining “habitual offenders”. They may also target specific communities for “public order maintenance”.
But who exactly is a “habitual offender”? Section 110 of the Code of Criminal Procedure (CrPC) does not have a definition, which varies from state to state. In Rajasthan and Punjab, for instance, a habitual offender is someone who has several prior convictions within a certain time.
In Madhya Pradesh, police regulations are more ambiguous. Criminal history does indeed matter, but even those who are not convicted of crimes might be viewed as habitual offenders if the police station house officer has “reasonable suspicion”. Rule 411(4) of the Madhya Pradesh Prison Manual defines a habitual offender as also being, “A member of Scheduled Tribes (STs) in the jurisdiction of the state government according to their discretion.”
As we explained in part 1 of this series, denotified tribes, such as Adivasi Gonds, were under British colonial law officially classified ‘criminal’. Although this law was repealed in 1952, the stigma of criminalisation and the targeting of these communities by the police continues. And police attitudes are reinforced by a legal regime designed for 'habitual offenders'.
Various judgments, such as Govind v. State of MP, 1975, state that surveillance should be allowed only against people “against whom reasonable materials exist ... that they show a determination to lead a life of crime”. Despite this and other similar judgments, the identification of habitual offenders and their surveillance continues largely because of the powers of discretion with the police. It is the police that decides, with next to no accountability, whether someone is criminal or even a ‘habitual offender’.
Who Is A Habitual Offender?
In India, there is a lack of accountability for the everyday actions of police. The all-important police register that records reports of crimes and FIRs (first information reports) rarely, if ever, comes under public scrutiny.
Left unexplained is the basis on which police decide to file (or not) an FIR; how they decide the offences under which an accused may be charged; when to make an arrest; the use of extrajudicial methods to gather evidence; and unauthorised surveillance.
In 2019, the Bhopal police entered into their register the record of a Pardhi child who had been convicted by the Juvenile Justice Board (JJB). Under law, convictions of a child in conflict with law should not show up on that child’s permanent records and is a violation of the principle of ‘fresh start’ espoused by the Juvenile Justice (Care and Protection) Act, 2015.
There are tangible repercussions to being labeled a habitual offender. Past records (whether they entail conviction or not) are brought up frequently during trial and other proceedings. Each record opens the gates to more records. And society and the state withdraw their empathy towards such a person. In their minds, reformation ceases to be an option and one is caught in the cycle of ‘criminality’.
A 14-year-old with a record finds it impossible to get employed, for instance, said Ravi Thakur (name changed), driver of a transport vehicle from the Kuchbandiya community in Jabalpur. He said he was compelled to take up driving loading-autos because he wouldn’t get a government job if he tried.
In November 2017, Indramal Bai, a Pardhi woman who worked as a waste-picker and was a single mother of two children, died by suicide following sustained harassment by three policemen at Bhopal’s Gandhi Nagar police station, according to the Asian Human Rights Commission. Despite public agitation and the findings of an independent fact-finding committee, no official action was ever taken against the policemen. The police argued that she had “criminal antecedents”.
In The Name Of Maintaining Public Order
It is not just section 110 and its problematic ambiguity in defining a ‘habitual offender. Other sections in the law, 107 and 109 for instance, are used to target communities under the garb of ‘public order maintenance’. These sections give executive magistrates wide powers over respondents who barely get adequate legal representation. Members of the Pardhi community are served notices under these provisions every year around Holi, and also before elections.
In 2018, just before the Madhya Pradesh Assembly elections, members of the Pardhi community were brought into police stations in scores and made to fill out forms that sometimes took over eight hours to complete and included questions about their assets, their relatives and the friends they made in prison.
Public notices such as the one below are common before elections.
Regulation 856 of the MP Police Regulations give Madhya Pradesh police wide powers to carry out surveillance through periodical enquiries into an habitual offender’s habits, income, expenses, etc., house visits during the day and night, secret stake-outs of houses, and maintenance of ‘bad character rolls’. This was one of the provisions challenged before the Supreme Court in Govind mentioned above.
If there is a wedding, Pardhi families are even asked to submit a copy of the invitation along with a list of guests coming in from outside the district, said Jai Singh.
Externment proceedings—an official order asking someone to leave the district if they are seen as a threat to the community—are common during the election cycle. These are instituted at the District Magistrate’s office on the recommendation of the police. These provisions are contained in various state laws. In Madhya Pradesh, they are carried out under the Rajya Suraksha Adhiniyam, 1990 and used to restrict the movement of a person within a district or even the outright removal of a person from a district.
Imtiaz, a Pardhi man, was asked to leave not one but six districts. At the time the order was passed, the police mentioned six cases in as many districts in their report to the District Magistrate but suppressed the details. It was only when Imitiaz appealed against the order that it turned out that two of the cases had been filed against him when he was a minor, which under the JJA should never have gone into his record even if he had been convicted. In the other cases, Imtiaz had either been acquitted or the proceedings were still pending.
Even if the case against Imitiaz was not so tenuous, the order to extern him from six districts was disproportionate to the options available to the DM. Under the law, he could have ordered Imtiaz to stop an undesirable activity or extern him only from the district where proceedings were pending. Yet, the DM’s order externed him not just from Bhopal but five other neighbouring districts. No reason was provided.
When state action leads to the infringement of a citizen’s fundamental right to personal liberty, freedom of movement and of residing at a place, it must be proportional to any perceived threat. There has to be what in legal terms is known as the principle of proportionality and reasonability of action.
In Indore, for instance, when an order of externment was passed against a journalist in 2014, externing him from Rajgarh district, the Madhya Pradesh High Court (HC) quashed the order and imposed a fine on the government for contravening principles of natural justice and impinging upon the journalist’s freedom of speech and expression. But, externment orders continue to be routinely passed against people from marginalised communities.
Preventive detentions under the National Security Act (NSA), 1980 are also at times used selectively against communities. Madhya Pradesh has a recent history of using NSA as a punitive measure against Muslims and Dalits booked for cattle slaughter and even cattle transport. The earliest case in recent memory is from January 2016. For the mere act of transporting livestock, dozens have spent months in prisons without access to regular legal recourse.
The police, like other executive authorities, enjoy abundant discretionary powers with minimal accountability. Procedural tools can be used to implicate people for crimes and punishments. This method of functioning remains hidden in practices and police registers stored away at the police stations. With scant oversight, compounded by the unavailability of data, the power wielded by local police stations over marginalised communities is immense. Criminal law legislation has increasingly expanded the power of police to seize movable and immovable properties. Newer tech-based surveillance also makes these powers more vulnerable to misuse.
Policing in India has remained true to its original function of exercising control over a section of the populace. Once used over colonial subjects, police authority is now used to control marginalised communities.
This is the second of a three-part series.
Previously on Article 14:
(Ameya Bokil and Nikita Sonavane are lawyers and co-founders of the Criminal Justice and Police Accountability Project, a research -litigation intervention in Bhopal. This article is derived from their experience of working on the issue of criminalisation of certain communities by the criminal justice system. Issues covered in this article are also the subject matter of the curation for the Detention Solidarity Network (DetSolNet) on Twitter.)