Putting rights issues through the looking glass. Not seeking answers, just some food for thought to see whether things could be any different!

Friday, August 05, 2005

Denotified Tribes in India.

The Denotified Tribes, Nomadic and Semi Nomadic Tribes (DNT-NTs) in India are an "invisible" section in our society.
In 1871, the British enacted a law called the Criminal Tribes Act which notified certain tribes as criminal. The Act attributed criminality to these tribes, mostly nomadic and semi nomadic in nature like the Banjaras, Bawariyas. Lodhas, Pardhis and many more, based on their birth into a certain group/ tribe.
This Act was repealed in 1952 and these tribes were denotified. But the Habitual Offenders Acts were enacted in various states. The new Act did away with the concept of collective criminality and tried to individualise guilt on paper but the legacy of discrimination and abuse continues.
They are not recognised as citizens of India, no schemes of the government apply to them and they do not find employment as they are stigmatised as criminals in society. They have lost their traditional forms of livelihood in this modern age and have no source of income.
They face police atrocities on a regular basis and they are not allowed to settle anywhere for a long time. The police still refer to them as criminals and treat them likewise.
They have been unable to organise themselves unlike the Dalits and do not even have a so called political constituency. They truly form the lowest rung of the social hierarchy and do not enjoy the basic human rights and constitutional guarantees.
The media also plays a significant role in perpetuating the bias against these marginalised people. The society is complicit in denying them their basic rights and freedoms. They are accused of a crime merely because of their physical proximity to the scene of crime or the manner in which a crime was committed. To quote from a news report on this, "Thieves were definitely Phase Pardhis. Here’s why...According to the boys, the attempt had all the traits of a typical Phase Pardhi robbery. All except one robber was bare-chested at the time of the theft and all were wearing shorts. They had brought well-rounded stones to use as weapons (There are no stones in the society compound since it is a completely concreted surface). The boys also say that the men managed to scale the 12-feet compound wall in a remarkably short time while they were running away from them." (Anthony, Hepzi. “Boys Prevent Theft at Veera Desai Road.” Mid-Day, April 10th, 2003)
The description will reveal that the same crime could be committed by anyone. The pre conceived notions of the DNT-NTs being nimble footed, nimbled fingered, tall and strong are rampant in society.
For more information on this subject, you can read Dr. Meena Radhakrishna's book "Dishonoured by History" on the Criminal Tribes Act and Dilip D'Souza's book "Branded by Law" and a short article at http://www.hrdc.net/sahrdc/hrfeatures/HRF101.htm

Repeal of the IMDT Act

Another judgment hailed by the BJP government and sections of the media but with its clear problems. I was amazed while reading some of the media reports on the Act and its problems. For instance, in a published article explaining the IMDT Act to the lay person, the author states "the most contentious provision of the act was the condition that the onus of proving the citizenship credentials of a person in question lies with the complainant and the police, not on the accused. Under the Foreigners Act prevailing in the rest of the country, the onus is understandably on the accused." (Vinayak, G., "What is the Illegal Migrants Act?", available at http://www.rediff.com/news/2005/jul/12act1.htm).
The burden of proof rule is that the onus/ burden of proving what is being alleged is on the one who alleges. Therefore, it is not for the migrant to prove that he did not migrate illegally. The Act is flawed, not because the burden of proof lay on the complainant, which is a basic tenet of law, which cannot be overturned under any circumstances but because of its weak implementation.
Clearly, the IMDT Act had its own problems. Only 5 of the 16 tribunals were functioning and very few migrants had actually been detected and deported during the 22 years that the Act operated. But, it is also true that the Act provided for some kind of due process through the setting up of migrant determination tribunals. The Act provided that if the complaint lodged under the Act is found to be false or vexatiuos, it shall not be accepted. Therefore, the Act could have done with amendments rather than repeal.
The repeal of this Act (applicable in the state of Assam) means that the tribunals will be dissolved and all the pending cases under the Act will be dealt with under the Foreigners Act 1946, a highly discriminatory piece of legislation. The law undermines the rule of burden of proof and requires that the accused prove his innocence. This provision can be subjected to wide misuse in the state of Assam as minority comunities can be subjected to harassment. The Act also does not require any such procedural requirements to be met on the basis of which an order of arrest or detention can be made. Clearly, the Act does not respect the need for following a just, fair and reasonable procedure in restricting or prohibiting the entry or departure of a foreigner from India. The wide discretionary powers granted to executive authorities under the Foreigners Act mirrors a wrongful bias against foreigners or immigrants and undermine the very principles of justice, fairness and equality that the Indian Constitution so proudly claims to uphold.
To read more about the judgment and the wide doors that it opens for minority oppression and other human rights violations, please read Prashant Bhushan's article on the same at http://www.outlookindia.com/full.asp?fodname=20050803&fname=prashant&sid=1.

The Parliament Attacks case

The judgment was delivered a few days ago..Please read more about the judgment at http://www.outlookindia.com/full.asp?fodname=20050804&fname=geelani&sid=1&pn=3

The developments in this case read like a story, interesting but hard to believe...

The alleged conspirators were booked within a week of the attack......a case was built by the police and POTA came into force and the so called militants confessed..isn't it too much of a coincidence?

Just to understand the detailed facts of the case and appreciate the clear holes in evidence....you can read an article by Nirmalanagshu Mukherji, Professor, Department of Philosophy, Delhi University, available at http://www.sacw.net/hrights/Nirmalangshu30092004.html. In this article titled "Who attacked the Parliament?", the author highlights the flaws in the investigation process in the case. When the government sets up inquiry commissions for anything and everything, why this exception in this one case?

The entire trial process is a joke and makes me wonder if the phrase "due process" ever existed in the police and judicial vocabulary.