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Redressing the Stigma

RESEARCH ARTICLE

Redressing the Stigma of ‘Nomadism’ and ‘Criminality’ : Underpinnings of its


Omission and Incorporation in Indian Reservation Policy

Dr. Swayam Panda


The author is a renowned sociologist and
served a term as Director, Research with the National Commission for DNT-NTs

I NTRODUCTION

The experience of India’s transition from medieval feudalism to modern democracy is distinct for
different communities living in different parts of the country. Alongside this political
transformation, the techno-economic change brought far reaching transformation in the lives of
many communities. The exposure to ‘industry’, ‘capitalism’ and ‘democracy’ rescued many
communities from the age-old discrimination and suppression. For example, the social
movement against Sati and Untouchability backed by legal provisions made by the State
redressed some extreme forms of social injustices in Indian society. Yet, there were still
numerous social groups who found themselves as targets of new forms of prejudices and
exploitation that emerged during the colonial subjugation. Further, some of the traditional
prejudices turned new leafs and assumed new characters. The historical account of the
Denotified and Nomadic Tribes illustrate this sufficiently. A series of enactments on ‘Criminal
Tribes’ and ‘Vagrants’ during the British regime caused stigmatization and marginalization of
numerous communities. These communities in the course of history are bundled into and
popularly known as ‘Denotified and Nomadic Tribes’.

The term ‘Denotified Tribes’ stands for all those communities who were notified under the
several versions of Criminal Tribes Acts enforced during the British Rule in between 1871 and
1947 throughout the Indian territory and were Denotified by the repeal of these Acts after the
Independence of India. Scholars studying Crime in pre-British India write that ‘In historic past,
one has the idea of social system organized by aboriginal tribes who had delinquent tendencies
in a greater degree’.1 Association with criminals or anti-socials was seen as an important reason
to produce delinquency in individuals. Hence, ancient seers and philosophers such as Kautilya,
Manu, Yajnavalkya and Narada advised Society to keep social distance from such aboriginal
groups. The Parasara Smriti 2 prevents conversation with criminally minded people to guard the
moral purity and sanctity of an individual. Devala, another Smriti writer, writes that contact with
a criminal for twelve months is enough to degrade the individual in the society. Hence, the
practice of social isolation is an age-old practice in the Indian social system. The traditional caste
system laid out detailed norms of social interaction to practice this isolation and thereby
preserving the purity of social groups. It was a strong belief that if all caste groups sincerely
follow swadharma or caste norms, the social offences and delinquent behavior would be

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Dr. Swayam Panda

nominal. The British legislation branding certain ethnic groups rather reaffirmed this social
prejudice.

Nomads too have an analogous record of social isolation in Indian society. After examining Tamil
literary compositions between 1 AD and 600 AD, P. K. Misra and Rajalakshmi Misra concluded,
“Nomads, i.e. wandering groups of people did exist about 2000 years ago. They were mostly
musicians – vocal and instrumental, jugglers known as Kazhai Kottadi, dancers, fortune tellers
and beggars. They were looked upon as belonging to low class groups and hence they had to live
on the outskirts of the cities or forts. They were poor, but occasionally received gifts from some
king or chief.” 3

The word ‘Nomad’ is derived from the Greek word ‘nemos’ that means ‘to pasture’. Hence,
originally the term ‘nomad’ referred to the people who wandered from one place to another
along with their herd of animals in search of pasture land. But, now the word nomad is used as a
common metaphor for all kinds of mobile people who move from place to place for earning their
livelihood. It is important to distinguish the habit of aimless wandering from traditional nomadic
people whose movement is never haphazard; rather it is both predetermined and systematic.

Terms such as nomads and semi-nomads are applied to ‘social groups who undertook a fairly
frequent, usually seasonal physical movement as part of their livelihood strategy in the recent
past’ 4. The term semi-nomad is mostly used to describe those sections of nomads whose
duration, distance and frequency of movement is comparatively less than others. The distinction
between nomads and semi-nomads do not involve distinguishable ethnic categories or social
groups, it rather describes the degree of mobility practiced by them. Hence, the term Nomad
should also allude to the semi-nomads belonging to their social or ethnic stock.

Nomadism is often viewed as a result of ‘laziness’ or ‘criminal tendencies’ and a sign of


persistent ‘backwardness’. Nomadism is seldom understood as a major risk spreading strategy in
regions where the vagaries of weather often lead to partial or total crop failures, where
intensive or extensive agriculture may not be viable or ecologically sustainable.5 Hence,
reference to nomads in administrative and legislative literature is mostly limited to expounding
the ‘problems’ these ‘backward communities’ created for the State in its developmental aims
and in finding solutions to these.

The composition of the Indian society is generally understood in terms of ‘caste’ and ‘tribes’. The
caste is a unique feature of Hindu social structure. Although, the term ‘tribe’ is widely used,
there is no consensus on its definition. Its application at times implies assumptions of ‘isolation’,
‘primitivity’ and ‘indigenousness’, or at places suggests ‘subsistence economies’, ‘political
autonomy’ and ‘cultural homogeneity’. In Indian context, what distinguishes the two terms is
that, while a caste must be explicitly a part of an elaborate ranking system based on criteria of
purity and pollution, a tribe does not necessarily have to be part of the ranking system, though it
often is. Aparna Rao and Michael Casimir, two distinguished Anthropologists studying the
nomadic communities in South Asia observe, “De facto, most tribes in South Asia, and especially
in India, function as part of the vast canvas of hierarchy and repression that is represented by

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Redressing the Stigma

the caste system, and, proactive policies notwithstanding,


most of these communities are subject to extreme social Occupational Displacement
discrimination and disentitlement.” 6
…It need not be emphasized that the
The modern India which is trying its best to break away from railways had the capacity to move
the caste system and establish an egalitarian and plural goods of greater bulk with greater
society has not done much to address the ‘social speed and at lower cost than any
discrimination and marginalization of the nomads. In the era means of land transport of earlier
of globalization, commodities and services are controlled by times. It has been estimated that
‘market’ and multinationals. This new global economic the Banjaras, the great pack-ox
system barely allows these traditional communities to lead transporters, moved about 1,320
their own little autonomous life. Hence, many of the million ton-kilometres of goods
traditional forms of nomadism are becoming fragile. For annually in the seventeenth century.
example, folk artists of past have turned destitute today, The railways had apparently long
artisans who supplied the agricultural implements or passed this figure by 1889, and, by
weapons of warfare are reduced to beggars, pastoralists 1914, were moving nearly nineteen
who once owned large herds are reduced to marginal times what the Banjaras used to
farmers, and so on. move two hundred and fifty years
earlier, and, of course did so
Hence, most of these communities now have become wage- incomparably faster and much more
labors and are pushed to margins by the industrial and cheaply.
market forces. Some of the communities have totally lost
their traditional occupations, dignity and self-sufficiency As with all industrial innovation, this
associated with it. The ethnographic accounts which allow us naturally meant the displacement of
to give a glimpse of their traditional vocations provide a workers employed in the pre-
wide range of professional activities. It reveals that some of industrial, long-distance
the Denotified Tribes were nomadic and others were settled transportation. If the Banjaras
communities. The traditional vocations followed by the numbered 400,000 in the
‘Denotified Tribes’ who led a settled life were: Butchering seventeenth century, they probably
and selling of meat, distilling and selling of liquor, forest numbered half a million in c. 1850.
tribes living through hunting and gathering, marginal Dispensing with these, the railways
agricultural communities in the buffer zone of the forest, employed some 273,000 workers in
scavenging and leather goods manufacturers, warriors or 1895 (who, with dependents,
people associated with warfare, and even those who formed a population of about a
provided services to agricultural communities. The range of million.)
professions followed by the nomads is as follows: pastoral Source : Irfan Habib, Indian Economy :
herders, foragers or hunter-gatherers, nomadic artisans, 1858-1914, Vol. 28 of A People’s History
nomadic entertainers, nomadic traders, nomadic of India, Aligarh Historians Society &
mendicants, and nomadic medicine men etc. Tulika Books, 2006, pg. 40-41.

The history of the term ‘Criminal Tribes’ is adequately


described in several scholarly works,7 hence need not be repeated here. However, I would like to
evoke a brief summary here for a swift recall. The earliest legal provision on regulating the
criminal tribes is found in Regulation No. XXVI of 1793. The famed fiction by Taylor8 titled

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Dr. Swayam Panda

Confessions of a Thug in early years of nineteenth century helped to create a popular imagery of
criminal tribes. In the year 1830, the British administration created a separate ‘Thuggi and
Dacoity Department’ and gave it powers of summary trials and execution to control the activities
of the criminal tribes and ensure safer highways. Later when the criminal laws were consolidated
to create the Indian Penal Code in 1860 and Criminal Procedure Code in 1898, several sections9
were devoted to this subject of regulating Criminal Tribes and Nomadic Communities. However,
these provisions were not enough and finally the Criminal Tribes Act 1871 was enacted. The said
Act in the initial years also proved to be of no use for regulating Nomadic Tribes and eunuchs,
hence, several amendments were made. The legal provisions were so scattered and varied in
different parts of the British controlled territories, the British Government brought a central
legislation in the year 1924 to consolidate these legal provisions for Criminal Tribes.

United Province Government had appointed a committee to inquire into the functioning of the
Criminal Tribes Act before Independence, and it submitted its report in 1947. This report echoed
the same prejudice against the Nomadic and Criminal Tribes. This committee felt that till the
Gypsies settled down, they would continue the life of crime. It proposed that “Efforts 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.” 10

The habitual Offenders and Vagrants Act that the above mentioned committee envisaged
proposed to contain provision for dealing with Habitual Offenders of the following three
categories:

i. “Those, who in spite of good environments and family traditions, become habitual
criminals,
ii. Those who, because of bad environments, particularly family traditions and associations,
take to life of crime according to the custom of their group and family and who are,
therefore, not so much immoral as amoral,
iii. Vagrants without any settled occupations, who lead a life of crime, prostitution and
idleness. Separate provisions will naturally have to be made in the Act to meet the
requirements of each category of criminals; while there will be common provision
too.”11

The last two categories suggested in this classification propagated the earlier definition of
‘Criminal Tribes’. The remedies sought for these three categories of Habitual Offenders were :
teaching honest livelihoods, their moral rehabilitation and diagnosis of their pathological and
psychological abnormalities and their scientific treatment. These correctional activities would
take place within the strict discipline of a jail. In real terms, the jail became the space where
these people were trapped into the exploitation of the industrial and market economy and
imposed new culture and morality.

With regard to vagrants or ‘Gypsies’, the committee appointed in the United Province took the
view that the policy of restricting them to settlements and industrial or agricultural colonies

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should continue with changes in the administration of these settlements and colonies. The
committee further writes that “This we do, not merely with the aim of protection of society from
an outbreak of crime, but in the interest of the settlers’ reform itself. Without having equipped
themselves with moral anchorage, the settlers let loose, are bound to behave like derelict ships
and meet a similar doom.” 12

The Criminal Tribes Act 1924 remained in force till its repeal in 1952 – five years after our
Independence. During this period, two private bills seeking to repeal the Criminal Tribes Act
were also introduced in the Central Legislative Assembly in 1946 and 1949. The first bill was not
moved after the introductory stage as the Honorable Minister of Home Affairs gave an assurance
that a committee would be appointed to enquire into the working of the Act in the Provinces
and to recommend whether the Act should be modified or repealed.

Consequently, an Inquiry Committee was established under the chairmanship of Ananthsayanam


Ayyangar in 1949 by Resolution No. 22/1/49-Police-I, dated 28th Sept. 1949 of the Ministry of
Home Affairs, the Government of India. Ayyangar’s committee recommended repealing the
Criminal Tribes Act 1924 and similar provisions which declared an individual as a criminal on the
basis of his caste or birth in a particular gang or class. Thus, the Ayyangar committee’s
recommendations removed the legal inconsistencies that the Criminal Tribes Act had with the
Constitution of India. However, it failed to redress the popular prejudice against the Nomads and
the Denotified Tribes. These age-old prejudices were further battered in the form of ‘Restriction
of Habitual Offenders Act’.

The State policy on Criminal Tribes and Nomadic Tribes is found to have two major aspects, i.e.
legislative measures to control and regulate them, and the other is to subject them to ‘welfare’
measures. The welfare measures planned are found to be always concomitant to the reasons for
which they are brought under control and regulatory regimes. Thus, Ayyangar’s inquiry
committee recommended several steps towards amelioration of the Criminal Tribes after the
repeal of the Act. The social and economic deprivation was believed to be the reasons for their
dereliction and there was fear that without welfare activities these malevolent syndromes may
regenerate. It wrote, “The members of Criminal Tribes have been laboring under manifold
disabilities over a long period. As a class, they are socially backward and economically depressed.
It is, therefore, essential to help them to improve their conditions and also to see that those who
had criminal propensities in the past but are reformed now, do not revert to crime on the repeal
of the Criminal Tribes Act.”13

The Government of India accepted some of the recommendations by Ayyangar’s Committee.


The Government of India repealed the Criminal Tribes Act 1924 with effect from 31st August
1952 by the Criminal Tribes Laws (Repeal) Act, 1952 (Act No. XXLV of 1952). But to keep effective
control over the hardened criminals, the Habitual Offenders Act was placed in the statute books.
The welfare angle of the State policy was ensured by putting these communities as Scheduled
Tribes, Scheduled Castes or Backward Classes. Though these communities were fitted into the
schemes of special protection and attention under the Constitution of India, they somehow

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missed the attention in the national debate to eradicate specific forms of social prejudices that
were the foundation of exploitation, harassment and subjugation.

In order to gain an understanding as to how ‘Criminal Tribes’ and ‘Nomads’ missed the
opportunity of the formation of the modern Indian State and society, we need to take a quick
glance at the historical progression of the welfare and empowerment of the marginal
communities in India. The history of special welfare programs for the deprived and marginalized
people in the history of India can be traced back to 1885, when the Madras Government
formulated the infamous ‘Grant-in-Aid Code’ to regulate financial aid to educational institutions,
providing special facilities for students of depressed classes. The second major step in this
direction was taken by the Maharaja of Mysore in 1918. He appointed Sir L. C. Miller, the then
Chief Justice of Mysore, to recommend steps for adequate representations for non-Brahmins in
the services of the State. And on recommendation of the Miller committee the Government of
Mysore issued orders in 1921 extending special facilities to backward communities with regard
to education and recruitment in state services.

In the same year, 1921, the Madras State Legislative Council passed a resolution in favor of
increasing the representation of non-Brahmins in the Government services. In 1927, this scheme
was expanded by dividing all the communities in the State into five broad categories and
earmarking separate quota for each category. The next example comes in 1928 from the
Government of Bombay, which instituted Mr. O. H. B. Starte to identify backward classes and
recommend special provisions for their advancement. This committee classified the backward
classes into three categories, i.e. 1. ‘Depressed Classes’, 2. ‘Aboriginal and Hill Tribes’, 3. ‘Other
Backward Classes’, and recommended special facilities regarding education and recruitment in
Government services. The first systematic attempt for the political empowerment of ‘Depressed
Classes’ was made with the introduction of Montague-Chelmsford Reforms of 1919, when
separate representation on a number of public bodies was given to members of these classes.

The Constitution therefore concentrated on the social prejudice towards the ‘tribes’ and
‘untouchables’ and treated the rest of the population as ‘poor’, described as ‘socially and
economically backward classes’ in the Constitution. As a consequence, other forms of social
prejudices such as there were in the case of Denotified Tribes and Nomadic Communities failed
to enter the arena of constitutional considerations. In the post-independent period, the modern
Indian State remained hegemonic and the Civil Society lingered its connivance and exonerated
itself from any democratic obligation by shifting the blame on to these victims. The ‘Scheduled
Tribes’ and ‘Scheduled Castes’ though got special protection under the Constitution of India, the
‘Other Backward Classes’ remained uncovered. Many of the Criminal Tribes and Nomadic
Communities were notified as Scheduled Castes or Scheduled Tribes. Their enrollment in the SC
or ST list however did not address the specific prejudices that were the foundation of
discrimination and marginalization. Further, those ‘Criminal Tribes’ and the ‘Nomads’ who did
not fit into the definition of the SC or ST were left in lurch continuing their fight against the age-
old prejudices.

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After Independence, the first Backward Class Commission was appointed on the 29th January
1953 under the chairmanship of Kakasaheb Kalelkar. This Commission suggested that the
erstwhile ‘Criminal Tribes’ should not be called ‘Tribes’ nor should the names ‘Criminal’ or ‘Ex-
criminal’ be attached to them. They could be simply called ‘Denotified Communities’14. The
Kalelkar Committee further recommended that “these groups may be distributed in small groups
in towns and villages where they would come in contact with other people and get an
opportunity for turning a new leaf. This would help in their eventual assimilation in society”.15
The Kalelkar Commission tried to end the isolation and promoted their assimilation into the
mainstream. The terms of assimilation were not stated in clear language. But, looking at the
overall idiom of the report, it would be safe to presume that the assimilation was excessively
compromising and was at the cost of their cultural identity. Thus the policy guideline proposed
by Kalelkar commission undermined the democratic rights of the Denotified tribes and totally
ignored their entitlement to protective discrimination as guaranteed to Scheduled castes and
tribes.

Let us now examine what Kalelkar Commission contemplated for Nomads. It takes special note
of the ‘wandering communities’ in later part of the report: “There are a large number of small
communities who eke out a precarious existence in the countryside. They have no fixed place of
residence and they move from place to place in search of food or employment. They often rear
pigs and poultry, hunt wild animals to satisfy their hunger and collect forest produce to make a
living. They live in thatched sheds or gunny tents, and move in groups. They believe in
witchcraft. Because of the insecurity of their life, some of these communities are given to crime.
It should be special responsibility of Government to give them a settled life.” 16 The report also
discusses the ‘traditional beggars’ or ‘religious mendicants’ who were mostly covered under the
Prevention of Begging Act, another appalling enactment by the British Government.17 The
Kalelkar Commission considered that the problem of beggary in India is a social and religious
malice and legislation is not an effective tool to solve this. He pointed out that glorification of
the alms giving is found in almost all religious denominations living in India. Beggary in Indian
context is regarded as a form of insurance against crime. The popular belief is that unless you
give a decent living to the able-bodied persons, you must be prepared to give alms; otherwise
people will take to crime.

The recommendations of the first Backward Classes Commission were not accepted by the
Government due to difference of opinion about whether caste should be the basis for defining
backwardness. After a detailed examination of the Commission’s report, the Government laid its
copy together with a Memorandum of Action taken before each House of Parliament on
September 3rd, 1956 in compliance with Article 340(3) of the Constitution. The Government did
not take any concrete action on the recommendations of the Kalelkar Commission. The
Government stated in this Memorandum that “the Planning Commission had already formulated
the development programs for the removal of backwardness and the main point to be stressed
was whether the special needs of the backward classes could be intensively and effectively
served by appropriate shifts of emphasis or by rearrangement of priorities within the framework
of the existing programs or whether additional programs needed to be drawn up.”

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After presenting the Memorandum to the Parliament, the Government made efforts “to
discover some criteria other than caste which could be of practical application in determining
the backward classes. The Deputy Registrar General was asked to conduct a pilot survey to see if
backwardness could be linked to occupational communities instead of caste. Such a survey was
undertaken but it failed to throw up the desired criteria. The matter was also discussed at a
conference of State representatives on 7th April 1959 and subsequently reviewed at a meeting of
State officers convened by the Ministry of Home Affairs, but no consensus emerged as a result of
these efforts.

The Central Government eventually took a decision that no all India lists of backward classes
should be drawn up, nor any reservation made in the Central Government service for any group
of backward classes other than Scheduled Castes and Scheduled Tribes. Consequently, on August
14th 1961, the Ministry of Home Affairs addressed all the State Governments stating, “While the
State Governments have the discretion to choose their own criteria for defining backwardness,
in the view of Government of India it would be better to apply economic tests than to go by
caste.”18 Regarding the preparation of lists of backward classes it was observed, “Even if the
Central Government were to specify under Article 338(3) certain groups of people as belonging
to ‘other backward classes’, it will still be open to every state government to draw up its own
lists for the purpose of Articles 15 and 16. As, therefore, the State Governments may adhere to
their own lists, any all-India list drawn up by the Central Government would have no practical
utility.” 19

After receiving this directive from the Ministry of Home Affairs, some of the state governments
set up committees or commissions to determine the criteria to be followed to identify the
backward classes and prepare the list of backward classes for their respective states.20 Other
states/Union Territories (Assam, Delhi, Haryana, Himachal Pradesh, Meghalaya, Orissa,
Pondicherry and Rajasthan) notified their OBC list without appointing any committee or
commission. These states mostly relied on the lists of OBCs maintained by them for the grant of
post-matric scholarships under the Education Ministry’s scheme formulated in 1944, and
another list prepared by the Commission for Scheduled Castes and scheduled Tribes at the time
of drafting the First Five year Plan.

In the meanwhile, the lists of Scheduled Tribes and Scheduled Castes were finalized by the
Presidential Order in 1950. The list of the Scheduled Castes drawn in 1950 was a revised version
of the list of SCs under the Government of India Order (SC), 1936, made under the Government
of India Act 1935. This was in turn the continuation of the list of ‘Depressed Classes’ prepared by
the Census Commissioner in 1931. Similarly, an attempt to list ‘Primitive Tribes’ was also made in
Census of 1931, and this list was later adopted into the Government of India Act 1935 as
‘Backward Tribes’. This list of ‘backward tribe’ was adopted with some minor alterations in 1950
as the list of ‘Scheduled Tribes’.

Hence, the identification and classification of the backward classes by the Government of India
embark on the norms adopted in Census of 1931. In the context of enumeration of ‘caste’ and
‘tribe’ the following paragraph is worth quoting here:

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“The column eight in the general schedule provided for an entry of ‘caste tribe or race’.
The term ‘caste’ needs no definition in India; ‘tribe’ was provided to cover the many
communities still organized on that basis in whose case the tribe has not become a
caste; it was likewise determinate enough, and no attempt was made to define the
term ‘race’, which is generally used so loosely as almost to defy definitions.” 21

Instead of providing a rigid definition of ‘depressed classes’, J. H. Hutton as commissioner of


Census operations of 1931 prescribed some possible tests to be considered by the
superintendents of census operations. These tests as prescribed by Hutton are as follows:

1. Whether the caste or class in question can be served by clean Brahmans or not;
2. Whether the caste or class in question can be served by the barbers, water-carriers,
tailors, etc., who serve the caste Hindus;
3. Whether the caste in question pollutes a high caste Hindu by contract or by proximity;
4. Whether the caste or class in question is one from whose hands a caste Hindu can take
water;
5. Whether the caste or class in question is debarred from using public convenience, such
as roads, ferries, wells or schools;
6. Whether the caste or class in question is debarred from the use of Hindu temples;
7. Whether in the ordinary social intercourse a well educated member of the caste or class
in question will be treated as an equal by high caste men of the same educational
qualifications.
8. Whether the caste or class in question is merely depressed on account of its own
ignorance, illiteracy or poverty and but for that would be subject to no social disability.
9. Whether it is depressed on account of the occupation followed and whether but for that
occupation it would be subject to no social disability. 22

J. H. Hutton, who was the Commissioner of Census in 1931 further wrote on criteria followed for
identification of the depressed castes:

“No specific definition of depressed castes was framed and no more precise
instructions were issued to the superintendents of census operations, but it was
realized that conditions varied so much from province to province that it would be
unwise to tie down the superintendents of census operations with too meticulous
instructions. The general method of proceeding prescribed was that of local inquiry
into what castes were held to be depressed and why and the framing of a list
accordingly. It was decided that Muslims and Christians should be excluded from the
term ‘Depressed Class’ and that, generally speaking, hill and forest tribes, who had not
become Hindu but whose religion was returned as Tribal, should also be excluded and
in the numbers of the exterior castes given below these principles have been
followed.” 23

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Thus, the variation of the social reality in different parts of Indian territory prevented the
identification of ‘depressed’ and ‘exterior castes’ on the basis of a set of rigidly defined criteria.
The general guidance issued by the commissioner of the Census 1931 only covered the social
oppression arising out of the practice of untouchability. It did not cover other forms of social
oppression such as ‘stigma of criminality’ and social exclusion and atrocities practiced against
‘Nomads’. The Census of 1931 also excluded the caste groups following Christianity, Islam and
other non-Hindu religions from the list. This list of ‘exterior castes’ or ‘excluded castes’ in Census
1931 was adopted in the Government of India Act 1935. Similar trajectory was followed in the
preparation of the list of Scheduled Tribes. The list of ‘Primitive tribes’ which was prepared at
the time of Census 1931 to a great extent shaped the list of ‘Backward Tribes’ in Government of
India Act 1935. The list was further extended in 1950 and 1956 under the Constitution of India as
Schedule Tribes. Primitiveness and backwardness were the two major criteria followed as tests
applied in preparing the list. In this backdrop, the State policy of ‘protective discrimination’ and
‘affirmative action’ remained narrow and selective within the colonial perception of dominant
forms of social discriminations. The criminalization and social isolation of nomads was also a
prevalent practice in Europe. Obviously, such formats for social discrimination that were part of
the British Society and not exclusive to the Oriental social structure were completely and
conveniently missed the attention.

After Independence, many of the communities who remained outside the purview of the
‘reservation policy’ expressed their dissatisfaction. The Governments, as a response to this,
considered several proposals to revise the lists of ‘Schedule Castes’ and ‘Schedule Tribes’ at
different points. However, the policy canvas froze to the scope of the Indian Constitution. And all
such claims had to be made to fit this sacrosanct policy format supported through ‘Dalit politics’
in post-independent India. Several constitutional committees who probed into the reservation
issue later felt inadequacy of the said ‘policy format’ to address the issues of Nomads and
Criminal Tribes. However, these observations could not impact the ‘policy format’ due to lack of
political force and support from the ‘colonized civil society’. Let us take a cursory look at those
opportunities when these communities narrowly missed justice, and civil society in India failed
to lift its democratic credentials to a level that was not achieved even by western societies.

In 1965, an advisory committee was constituted for the revision of the Scheduled Castes and
Scheduled Tribes lists by Government of India under the chairmanship of Mr. Lokur. In revising
the list of Scheduled Tribes the Lokur Committee looked for indications of primitive traits,
distinctive culture, geographical isolation, shyness of contact with the community at large and
backwardness. The committee also considered that the tribes whose members have by and large
mixed up with the general population are not eligible to be in the list of Scheduled Tribes. The
Lokur Committee took a stricter view in the matter of fresh inclusions in the list of Scheduled
Tribes and stuck to the criteria fixed in the Government of India Act 1935.

Although the Lokur Committee in general followed a strict guideline for entertaining the
requests of revision of the Schedule Castes and Schedule Tribes lists, its remarks on Denotified
and Nomadic Tribes were quite interesting. In the matter of defining them as Denotified and
Nomadic Tribes, the Lokur Committee observed that it would be more scientific to refer to them

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as communities. It further writes that “members of the Denotified and Nomadic Tribes possess a
complex combination of tribal characteristics, traditional untouchability, nomadic traits, and an
anti-social heritage.”24 The Lokur committee furthermore observed that their ‘discussion with
the state governments reveal that the type of developmental schemes usually designed for
Scheduled Castes and Scheduled Tribes have not benefited the Denotified and Nomadic tribes to
any significant extent because of their relatively small numbers, and their tendency to be
constantly on move. It is also clear that while these communities may possess some of the
characteristics usually associated with the Scheduled Castes and Scheduled Tribes, the dominant
factors which govern their life are their anti-social heritage and tendency to move from place to
place in small groups.

The Lokur committee was so convinced about the distinct characteristics of the Denotified Tribes
and Nomads that it felt “it would be in the best interest of these communities if they are taken
out from the lists of Scheduled castes and Scheduled Tribes and treated exclusively as a distinct
group, with development schemes specially designed to suit their dominant characteristics.” 25
However, the Lokur Committee decided to maintain the status quo as, due to the limitation of
time and absence of adequate information they could not decide the cases of individual
communities belonging to Denotified and Nomadic Tribes.

The distinctions such as ‘anti-social heritage’ and ‘tendency to move from place to place’ pointed
out by the Lokur committee again reiterate the social prejudice against these groups. As the
Lokur committee had observed, some of these communities who shared characteristics akin to
the SCs and STs were classified in the official lists prepared in different states and Union
Territories. Those who did not fit into this constitutional format were covered under
‘educationally and socially backward’ communities.

The Kalelkar commission that delved into the issue of classification and identification of
‘educationally and socially backward communities’ immediately after Independence gives
extensive description of communities to be considered for this purpose. The first two categories
described by this commission were: “1. Those who, owing to long neglect, have been driven as a
community to crime. This group is now resolved into those belonging to SC, those belonging to
STs – the remained will be considered as belonging to ‘Other Backward classes’. 2. Those
nomads who do not enjoy any social respect and who have no appreciation of a fixed habitation
and are given to mimicry, begging, jugglery, dancing, etc.”26 Later, in 1978, Shri Morarjibhai
Desai, the then Prime Minister of India, declared the constitution of another Backward Classes
Commission under the chairmanship of B. P. Mandal. This commission submitted its report to
the president Shri Neelam Sanjiva Reddy on 31st December 1980.

The second Backward Classes Commission under the chairmanship of B. P. Mandal criticized this
government policy of emphasizing the economic criteria and dismissing caste as a criterion to
determine the social and educational backwardness. It strongly advocated that the caste should
be the basis for determining social and educational backwardness. It wrote: “It may be possible
to make out a very plausible case for not accepting caste as a criterion for defining ‘social and
educational backwardness’. But the substitution of caste by economic tests will amount to

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Dr. Swayam Panda

ignoring the genesis of social backwardness in the Indian society.”27 The report of the Mandal
Commission was taken up for implementation by the then Prime Minister V. P. Singh in 1990.
The significance of Mandal Commission’s report was that it turned the nation’s attention back to
the ‘social oppressions’ inherent in the social structure of the Indian society. Ideally, this was an
opportunity to address all forms of social discriminations including at least those against the
nomads and the so called ‘ex-criminal’ or denotified communities. Unfortunately, the soul of the
debate lost its gloss in the narrow politics and the nation failed to honor the spirit of the
constitution which was committed to end social discrimination and ensure liberty and social
justice to all its citizens. The Indian State missed another opportunity to expand its policy for
‘protective discrimination’ and ‘affirmative action’ in order to root out the vices of centuries old
discriminatory practices in our society.

B. P. Mandal brought the nation’s focus back to the caste based oppression and social disabilities
inherent in the system to be considered as a relevant criteria for welfare activities by the State.
However, it failed to define other dimensions of ‘social discrimination’ and ‘social prejudices’
which were not covered at the time of the making of Indian Constitution. Mandal construed the
caste hierarchy having two distinct divisions, i.e. forward and backward. This two-tiered division
fails to capture shades of complicity within social hierarchy within Indian society. The practices
of ‘social discrimination’ and ‘impacts of social prejudices’ operate at multiple levels and result
into an array of ‘social disabilities’. B. P. Mandal was reluctant to accept this multiplicity of social
discrimination. This attitude is reflected in Mandal’s report in response to a fellow committee
member, Mr. L. R. Naik’s suggestion to divide the list of OBCs into two sections, i.e.
‘Intermediate Backward Class’ and ‘Depressed Backward Class’. This suggestion was summarily
rejected by the chairman of the committee, however a separate minute of dissent was admitted
and included in the report. Mr. L. R. Naik wrote a separate minute of dissent with reference to
this suggested bifurcation in the categorization of the socially and educationally backward
classes of citizens. In his classification, the definitions of the ‘intermediate’ and ‘depressed’
backward classes are as follows.

The intermediate backward classes are those who have co-existed since time immemorial with
upper castes and had, therefore, some scope to imbibe better association. The ‘Depressed
Backward Classes’ are those communities ‘whose intermingling with the Indian society was
either denied, prohibited or segregated on account of stigma of nomadism or criminality’. Thus,
L. R. Naik had clearly brought nomadism and criminal stigma as two unattended dimensions of
discrimination practiced in Indian society into the discourse.

L. R. Naik believed that “these unfortunate class of people, i.e. ‘Depressed Backward Classes’,
seeped as they are in massive backwardness, would take time for their enlightenment and
advancement, unless, of course, concerted efforts, at national level, are made by way of
sagacious inputs of safeguards the benefits of which should be percolated to them in a large
measure. So there is a compelling need to shift them carefully from the main common list and
create a separate entity of equals or near-equals to bring about a healthy competition among
them for the benefits of safeguards. The rest of the communities in the common list should then

12 / MUKT – SAAD / OCTOBER 08


Redressing the Stigma

form a distinct category for the same reason of creating an atmosphere for competition among
equals for the safeguards. This device is necessary in the interest of the nation as a whole.”28

L. R. Naik made yet another important observation on a more recent dynamics in the caste
system. He wrote: “During the course of my extensive tours throughout the length and breadth
of India, I observed that a tendency is fast developing among ‘Intermediate Backward classes’ to
repeat the treatments or rather ill-treatments they themselves have received from time
immemorial at the hands of the upper castes, against their brethren. I mean, the Depressed
Backward Classes. In an unequal society like ours, it is necessary that the commission takes all
precautions so that the more helpless and needy segments are not deprived of the benefits of
the various safeguards by avoiding cut-throat competition among unequals.”29 L. R. Naik here
exposes inconsistency in the social policy of being selective about only a certain kind of social
discrimination to provide preferential treatment by the State.

B. P. Mandal in his covering letter addressed to the President acknowledges the relevance of
these arguments introduced by Mr. L. R. Naik. He wrote, “Whereas the commission sees the
point of Shri Naik’s contention, the acceptance of his approach will result in a situation which is
repugnant to Article 15(4) of the Constitution. In the case of Balaji vs State of Mysore, the
Supreme Court has clearly held: “In introducing two categories of Backward Classes what the
impugned order, in substance, purports to do is to devise measures for all the classes of citizens
who are less advanced compared to the most advanced classes in the State, and that, in our
opinion, is not the scope of the Article 15(4).” ”30

Thus, the debate ignited by L. R. Naik that had a potential to expand the principle of social justice
and root out the practices of social discrimination from Indian society was abruptly disbanded.
The discourse which had a scope for making a progressive legislation was prematurely
abandoned citing a judicial interpretation of existing laws as an excuse. The constitutional
Committees that are formed with an objective to advise the legislative on understanding the
realities and determine the legislative policy ought not to work as judicial organs.

C ONCLUSION

The policy of reservation in India is captive of the conventional perception about the Indian
social structure. The social structure in India is concomitant to the ‘caste structure’ which is a
product of ‘caste system’ erected on the doctrine of a graded system of social discrimination.
The conventional understanding about this ‘system of social discrimination’ reflects a gradient of
‘ritual purity’ with Brahmins at the top and the Sudras at the bottom. However, the ‘system of
social discrimination’ had other dimensions and it equally despised social groups such as
‘Nomads’ and ‘Criminal Tribes’.

These social groups for reasons as discussed here have remained deprived of the benefits of the
reservation policy. The historical process of the formation of democratic India, though addressed
some forms of social discrimination, failed to extend this benefit to these two major
constituencies. Historical records also show indications that Dr. Babasaheb Ambedkar who
piloted Indian policy of affirmative action was aware and even tried to some extent for

MUKT – SAAD / OCTOBER 08 / 13


Dr. Swayam Panda

protecting the interests of nomads and criminal tribes. But, due to lack of political will from
other sections of the society and absence of a leader with national prominence among nomads
and criminal tribes, their interest could not be protected in Indian Constitution.

The current situation of political leadership among the nomads and criminal tribes has not
changed much. Though many of them are educated and have achieved economic success and
social prominence in the society, yet, none of them have attained national prominence. It will be
wrong to assume that these communities are not politically active. But, the issue of leadership in
these communities is mostly reduced to electoral franchise, putting aside their legitimate
demands and aspirations. As a result, these communities have become party pawns and this
system of vote bank only serves the interest of the elites within these groups. 31

In this context, the hope really hinges on the Civil Society and the political will of the majority.
The political establishment and the civil society at the time of independence had high hopes
from the ‘self-rule’. It was quite natural for the national leaders to take ‘Independence’ as
panacea for all social maladies as well as aspirations. That could be the reason why other forms
of social discriminations were not specifically addressed in the constitutional framework. After
six decades, when no such delusion exists, the civil society should take up this issue of social
justice and help to generate a political will in favor of extending reservation policy to these
communities. The Indian civil society should shun the complicity if any, and should not pass the
buck to incompetent ‘political leadership’ from these communities nor to allow them to be
victims of vested politics of vote banks.

R EFERENCES :

1. Dr. V. Upadhyaya, 1978, A Study of Hindu Criminology, Chaukhamba Orientalia, Delhi, p.204
2. Parasara Smriti, Chapter 1, Verse 25
3. Nomadism in the Land of Tamil between 1 AD and 600 AD, in P.K.Misra (ed) Nomads in
India, Anthropological Survey of India, Calcutta, 1982
4. Aparna Rao et al, 2003, Nomadism in South Asia, Oxford University Press, New Delhi, P. 3
5. Ibid.
6. Ibid.
7. Meena radhakrishna, 2001, Dishonoured by History : ‘Criminal Tribes’ and British Colonial
Policy, Orient Longman, Delhi; Dilip D’Souza, 2001, Branded by Law, Penguin Publications,
New Delhi; A. Ayyangar, Report of the Inquiry Committee on Criminal Tribes Act, 1950,
Ministry of Home Affairs, Government of India, Delhi.
8. Taylor, 1839, Confessions of a Thug, Reprint by Rupa Publications, New Delhi, 2001
9. Particularly Section 109,110 of Criminal Procedure Code 1898 specifically aimed at vagrants
10. Report of the Inquiry Committee on Criminal Tribes, United Province, 1947, Government
Press, Madhya Bharat, Lucknow
11. Ibid, para 36
12. Ibid, para 60

14 / MUKT – SAAD / OCTOBER 08


Redressing the Stigma

13. A. Ayyangar, Report of the Inquiry Committee on Criminal Tribes Act, 1950, Ministry of
Home Affairs, Government of India, Delhi
14. The Report of the Backward Class commission, 1955, Government of India Press, Delhi, para
48(1), page 36
15. Ibid, para 48(3), page 36
16. The Report of the Backward Class commission, 1955, Government of India Press, Delhi, para
135
17. Ibid, para 136 to 145
18. Govt. Order (No. ?) of Ministry of Home Affairs, 14th August 1961
19. Ibid
20. The list of the committees appointed by the state governments in this regard is presented
in the table below:
State Year Name of the Chairman
Andhra Pradesh 1968 Shri Manohar Pershad
Bihar 1971 Shri Mungeri Lal
Gujarat 1976 Shri A. R. Bakshi
Jammu & Kashmir 1969 Shri J. N. Wazir
“ “ 1976 Dr. Adars S. Anand
Karnataka 1961 Dr. R. Naganna Gowda
“ 1975 Shri L. G. Havanur
Kerala 1963 Shri V. K. Vishwanathan
“ 1965 Shri G. Kumar Pillai
“ 1970 Shri M. P. Damodaran
Maharashtra 1961 Shri B. D. Deshmukh
Punjab 1965 Shri Brish Bhan
Uttar Pradesh 1975 Shri Chhedi Lal Sathi
Tamilnadu 1969 Shri A. N. Sattanathan

21. Census of India 1931 (page 425, Vol. I) para 177


22. Ibid, page 472
23. Ibid, page 471
24. Report of the Advisory Committee to revise List of schedule Caste and Schedule Tribes,
Lokur Committee, 1965, Govt. of India, Department of Social Security, page 24
25. Ibid, page 16
26. The Report of the First Backward Classes Commission, Kaka Kalelkar, 1955, para 26
27. The Report of the Second Backward Classes Commission, B. P. Mandal, 1980, para 1.21
28. Dissent Note by L. R. Naik, The Report of the Second Backward Classes Commission, B. P.
Mandal, Vol. IV, page 1
29. Ibid
30. The Report of the Second Backward Classes Commission, B. P. Mandal, Vol.1, cover letter to
the President, page iv, para 13
31. See Aparna Rao (1999), Saberwal (1999), and Aparna Rao and M. Casimir (2003) among
others on political trends in these communities

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