INDIAN CONSTITUTION’S ARTICLE 14 SELDOM APPLICABLE TO SEMI-NOMADS AND THEIR CHILDREN - Advocate. R. Karunanidhi

INDIAN CONSTITUTION’S ARTICLE 14 SELDOM APPLICABLE TO SEMI-NOMADS AND THEIR CHILDREN -  Advocate. R. Karunanidhi
 
INTRODUCTION 

The recent movie ‘Article 15’ has attempted to demonstrate the deep-rooted presence of caste-based discrimination in the criminal justice system and public administration. While, the context in this movie was located in Bihar, majority of the Indian union witness the same. Social biases and discrimination play out in an obvious manner at several levels within the criminal justice system. Practical realisation of Article 15 of the Indian Constitution remains far distant till today, almost seven decades of adopting the same. This severely constrains the exercise of Article 14. 

The de-notified tribes, nomadic and semi-nomadic communities, have historically borne the brunt of discriminatory caste structures, which to a large extent resulted in harsh community profiling and victimisation through misuse of certain legislations. It is no different in Tamil Nadu. Apathy of the criminal justice system towards the Kuravanand Kal Ottar communities in Tamil Nadu raises several pertinent questions and concerns. Semi-nomadic communities in Tamil Nadu are engaged as fortune tellers, snake charmers, grindstone makers, jugulars, basket makers, ‘Boom Boom Maattukarar’ (Oxen used as performing animals) and beaded ornament sellers. The word ‘Narikurava’ is a combination of the Tamil words "Nari" and "Kurava" meaning ‘jackal people’ or ‘fox people’.  The main occupation, source of livelihood, of the people who originally belong to the indigenous tribes, is hunting. As these communities were prohibited entry into forests to pursue this livelihood, they were forced to take up other alternatives such as selling beaded ornaments to survive. Hence, they migrated from place to place to find a market for their beads. Even ox owners, having stopped door-todoor collection of alms, they have now begun to travel far and wide to eke out a living. They go to different public gatherings in other districts for more than 25 days a month, earn as much as they can and spend the rest of the five to six days with their families before embarking on the next journey. 

These people travel from place to place for their livelihood. These communities are largely devoid of right to shelter, dignity and livelihood which are guaranteed under Constitution of India, given our current jurisprudences fail to acknowledge and provide for these rights for nomads. They conduct their life fearing about false cases. If a person does not have a shelter, s/he is more vulnerable to be targeted by the police and the same leads to several false cases. The cases often end in acquittal. There is a clear trend in Tamil Nadu that the accused is compelled to admit to the prescribed guilt and pay a minimum amount as fine to stay out of prison. Once the accused pleads guilty and pays
 
 the fine amount, automatically the criminal records place her/him as a convicted person. Thereafter, opinions of the judicial magistrates are always not favourable towards the convict. This article is based on my experience of engaging with the criminal justice system and representing these communities, including children of these communities. 
 
CASE STUDIES:

 

 In one of the incidents which occurred on the midnight of June 21, 2016, four Madurai policemen abducted a three-year old child along with three adults of the Kuravan community. The abducted adults earned their living by selling toys, balloons, etc during local temple festivals and other social occasions. This three-year old child was forcibly taken by the police despite his mother’s strong objections. The child was remanded to the judicial custody by a judicial magistrate without his mother and failed to communicate the facts of child’s remand to the mother. The Madurai Bench of the Madras High Court took notice of this fact while hearing Habeas Corpus Petition in this case and came down heavily against the police and the subordinate judiciary for remanding the three-year-old in the Special Cell for Women at Madurai Central Prison without mother. The child was in jail for 18 days. The court also directed the judicial magistrate to appear before it and produce all particulars. The court suomoto impleaded the Tamil Nadu home secretary and the director general of police as Respondents for taking action against the four Madurai police officials for their cruel act. The court however did not award compensation or issued directions to initiate action against delinquent police officers. 

In another horrific incident, in the wee hours of October 19, 2018, around fifteen policemen arrested two adults and an infant aged a year and four months from their house. They belonged to the Kuruvan community. All arrest guidelines were flouted and the mandatory procedure of informing nearby people on arrests wasn’t undertaken. As a legal intervention, a Habeas Corpus Petition before the Madurai Bench of the Madras High Court. The police responding to this petition, after a gap of few days, placed before the court that infant’s mother attempted to steal One Hundred Rupees and therefore all of them were arrested and sent to jail. Meanwhile, the judicial magistrate in the proceedings before him, failed to take into consideration that the alleged offence of attempt to theft attracted less than three years of punishment and there were no previous cases against the accused – a case of immediate bail in accordance with Section 41-A4 of the Criminal Procedure Code (CrPC) and the Supreme Court’s 2014 judgement in Arneesh Kumar vs Union of India5. The high court while disposing the Habeas Corpus Petition, issued no warning to the concerned police
 

In another case, on May 14, 2014, two children along with 6 adults belonging to the Kuravan community were kept in illegal custody in Thuckalay by the Kanyakumari police for about 12 days. Legal intervention was initiated by filing a Habeas Corpus Petition before the Madurai Bench of the Madras High Court. Meanwhile, during the proceedings before the judicial magistrate, adults and children were remanded to the judicial custody, insensitive of the situation of children in crowded barracks amidst women convicts, under trials and offenders relating to all types of crimes including violent crimes. 
In another case from Kanyakumari, in April 2016, 9 Kuravan including four adults and five children were kept in illegal detention for a period of 63 days. Four policemen in mufti arrived at the place where these people stayed during their livelihood travels. The people were engaged in sharpening knife, carried a machine on their shoulders, moving from one place to another within the district, rendering their services to the households. They were illegally detained, kidnapped and kept in an isolated place for 63 days, brutally tortured and left starving – only a meal in a day – half boiled rice with chillies. Some of them required medical surgeries. Even children had marks of torture on their bodies inflicted by physical assault using bamboo sticks. They were denied their right to cast votes during the state legislative assembly elections in May 2016. Their minimal personal belongings, especially sacred ornaments made of gold, were taken away and children were tonsured. The illegal custody only ended after filing a Habeas Corpus Petition before the Madurai Bench of the Madras High Court. The police immediately registered 13 fabricated cases against the people, based on the confessions extracted in police custody. They were later released from the custody and today acquitted in 10 out of 13 cases. Police is yet to file a final report in the remaining three cases. 

In 2016, a juvenile and his family members were tortured brutally by the police, purportedly because they belonged to a tribe dubbed by the British as criminals under the Criminal Tribes Act, 1871.The victims were forcibly stripped and partially naked, beaten up with wooden logs and forced to name someone from their community for involvement in a theft. Badly injured, they had no access to the drinking water, forcing them to fetch the same from the lock-up toilet. The NHRC took cognizance based on a media report and pointed out that the 1871 law may be extinct now but presumably the mindset remains unchanged as the young boy is learning what it meant to be born a Kuravan.
Such torture, cruel and inhumane treatment is not only violative of the current legal jurisprudence but also several international commitments by the Indian state. Actions by police, response of the judiciary, lower and higher, are matters of grave concern and explained later in this article. It is pertinent to highlight the impact of such cruel actions on individuals, especially the children. Children when subjected to illegal custodies and violent behaviours, the risks of depression, suicide, self-harm, poor emotional developments, impacts of inter-personal relationships etc are certainly higher. 
 
LAW AND THE NOMADS
Generally, ‘remand’ means a person is to be detained in the ‘custody’ to enable collecting evidences on the charges. An accused arrested without warrant by the police has rights under Article 22(2)6 of the Indian Constitution and Section 577of the CrPC to be produced before the judicial magistrate without unnecessary delay and in no circumstances beyond 24 hours, excluding the time necessary for the journey. During the course of investigation in a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the judicial magistrate in exercise of power under Section 1678 of Cr.P.C. The power to authorise such a detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. 

The above-mentioned cases demonstrate evidently that all provisions provided in laws relating to arrest were violated. In addition to the same, guidelines outlined by the Supreme Court in D.K Basu Case9 as well as the NHRC guidelines on arrest were not adhered. Provisions of the Cr.P.C.in Sections 41-A, B, C & D, 50-A, 53, 54, 60-A have not been followed in these cases. Supreme Court’s directions in Arneesh Kumar vs State of Bihar10 on remand has also not been followed in these cases. Hence, the illegalities run from the time of arrest, to the entire period of illegal detention, often coupled with brutal torture. Even in instances where physical torture can be established prima facie because of fresh surgical marks and bruises, often the judicial magistrates have turned a blind eye. One may wonder if the letters of the law hold a backseat when it is challenged with the social narratives around the nomadic, semi-nomadic and de-notified tribes. Realisation of Article 14 can only be when the State sees an individual only as a citizen, engulfed in the laws and devoid of the criminalising social constructs built around identity.  

However, this is only one part of the larger challenges with the criminal justice system. My experience as a lawyer also suggest a certain level of lack of seriousness such cases deserves from the institutions. In several such cases, detention is authorised 

in a routine, casual and cavalier manner. ‘Bail not Jail’, as a principle is seldom applied. I am not attempting to suggest that offences of theft, extortion, and dacoit are not of serious nature offences. It has been repeatedly alleged by the members of Kalottar and Kuravan communities that the police, when they fail to identify the actual offenders, foist false theft cases against them and implicate them through recording false confessions. These routine remands disclose that many of the persons remanded do not have previous criminal records – records are such manufactured to add in the ‘history sheet’. Since most people have cases across different geographical locations, they have to present themselves, before different courts and sign in different police stations, resulting in great financial and physical burden, including loss of livelihood. 
 
REFORMS REQUIRED 

Many police officers audaciously share messages that persons belonging to the Kuravanor Kalottar communities should be suspected to have been engaged in the crimes. Some of the recent Tamil films also portray certain semi-nomadic communities as criminals that indulge in theft, extortion and dacoity. In Madurai last year, a mobile phone was reportedly stolen at a particular place, the police without much application of mind and law, booked a youth from the Kuravan community. 
 

These young boys were the first person who had entered an engineering college from his family and now is bound by the stigma and scar for whole his life. The police inspector had arrived at the judgement, which is beyond his role, and publicly termed this boy a culprit since he belonged to the Kuravan community. In several instances, charge-sheets are filed in such cases without any substantive evidences, leaving the accused with two options – either fight out the trial through a competitive lawyer requiring considerable amount of money or plea bargain – plead guilty and accept to be a criminal. When they chose to exercise the later, they may not know it would be counted as a conviction. When they chose to exercise the former, society had already declared them guilty. These prejudices exist at several levels within the criminal justice system – Article 14 restricted to just a provision written in the Indian Constitution.  

NHRC, in a historic meeting held in February 2000, had recommended the repeal of the Habitual Offenders Act, which in effect replaced the Criminal Tribes Act after the independence. The Habitual Offenders Act has spelt terror to these communities for half a century, as they can still be summarily rounded up whenever there is an unexplained crime. NHRC had also promised to take steps to monitor atrocities on these communities and reorient the police training systems to change the attitudes of the police towards these communities at all levels. It had also accepted the need to protect these communities through a comprehensive package of welfare measure, including employment opportunities. However, no welfare measures, or recommendations by the NHRC alone is enough to create a more humane public opinion. NHRC also recommended for sensitisation of the entire state machinery, specially the police officers by providing appropriate training with the National Police Academy. A lot of the NHRC recommendations are yet to see the light of the day. 

CONCLUSION
Hopes to lead normal lives are further strangled by the criminal justice system’s processes. Their small and scattered population restricts in garnering adequate attention from political parties. Primary demand of the semi-nomadic communities is for a change in attitude of the police, allowing them to live normal life. Children are our most valuable resource and they are precious. However, children of the semi-nomadic communities are quite often exposed to police and judicial custodies along with their parents which risk their future. There are several instances when these community members spend their life term as remand prisoner in state jails, even after obtaining statutory bail, given the paucity of bail surety arrangements. Judicial magistrates have also developed a mindset that if a person is having more than a case, the same can preclude them in granting bail. A number of persons from the semi nomadic communities are languishing in various jails as remand prisoners and their children’s life are in peril. The offenders must undergo punishment but the same should be obtained through the use of a fair legal procedure.
 

Our criminal justice system, in practice, happens to be only retributive and not reformative. Article 15 of the Indian Constitution envisages that no human being should be subjected to discrimination merely on the fact that he belongs to a particular caste, creed or community. However, the police actions targeting particular communities, complemented by biased judicial verdicts, are violative of not only Article 15 but Article 2111 guaranteeing the right to life, liberty and dignity. The nomadic, semi-nomadic and de-notified communities require long term rehabilitation and equal access to rights and opportunities. The government must be willing to undertake the same. The judiciary needs to extend legal aid in a meaningful manner not only for defence in the cases registered against them but also to advance their rights and to lead a dignified life.