Habitual Offenders Act ,1952

HLCD

Submitted by: Submitted to:

Junaid Jan Prof. (Dr.) Sophy K. J

National Law University, Delhi

 Critical Analysis of the Habitual Offenders Act, 1952

The Habitual offenders act,1952 draws its roots from The Criminal Tribes act, the first
enacted in 1871 as the Criminal Tribes Act, 1871 applied mostly in North India. The Act was
extended to Bengal Presidency and other areas in 1876, and, finally, the Criminal Tribes Act,
1911. The Act went through several amendments in the next decade and, finally, the Criminal
Tribes Act, 1924 was passed. Post-independence the act was finally repealed and a new act
was passed which came to be known as the Habitual Offenders act,1952 as the committee set
by the centre government found the act to be against the essence of the Indian constitution.

The act does not depart significantly from the Criminal Tribes Act from which it is derived.
Both the Criminal Tribes Act and the Habitual Offender's Act negate the universally
proclaimed principle that "all human beings are born free and equal". The listing of these de-
1
notified and nomadic under the Habitual Offender’s Act also negates the principle of the
criminal justice system – innocent until proven guilty and In this article I shall try and prove
that the Habitual Offenders act is violative of the values enumerated by the makers of our
constitution and that the act is archaic and inapplicable in today’s world.

The reason for passing the Criminal Tribes act was to suppress the so called 'predatory
castes' and for this vision of a secure and prosperous country, as stated by W W Hunter
surveying England's Work in India ,envisioned a “more secure more prosperous India, where
roads, railways, bridges, canals, schools and hospitals had been built; famines tackled; thugi,
dakaiti and predatory castes suppressed; trade developed; barbaric social practices like
widow-burning and infanticides abolish, ironically the act targeted and stigmata helpless
nomads ,stereotyped castes and the general public at pleasure of officials.2 The British
believed in meshing of quasi-scientific ideas about hereditary behaviour (phrased in the bill
as an 'addiction to non-bailable offences') with a logical linking of conduct, 'profession' and
caste.3 They believed that just like a carpenters son would continue doing the hereditary

1
Subash Mahopatra. Repeal the Habitual Offenders Act and affectively rehabilitate
the denotified tribes, UN to India,2007-03-19,
http://www.asiantribune.com/index.php?q=node/4972
2
Review: Dishonoured by History, Branded by Law, Source: Economic and Political Weekly, Vol. 37,
No. 5, Money, Banking and Finance (Feb. 2- 8, 2002), pp. 391-392, Published by: Economic and
Political Weekly Stable URL: http://www.jstor.org/stable/4411683 Accessed: 13-09-2017 16:55 UTC
3
Ethnology and Colonial Administration in Nineteenth-Century British India: The Question of Native Crime and
Criminality, Mark Brown, The British Journal for the History of Science, Vol. 36, No. 2 (Jun., 2003), pp. 201-219,
business passed down to him from his father who has also probably endowed it from his
father and so on, and if we look at 'professional criminals' in the same light Review:
Dishonoured by History, Branded by Law, Source: Economic and Political Weekly, Vol. 37,
No. 5, Money, Banking and Finance (Feb. 2- 8, 2002), pp. 391-392, Published by: Economic
and Political Weekly Stable URL: http://www.jstor.org/stable/4411683 Accessed: 13-09-
2017 16:55 UTC we come to the conclusion on what the term really does mean. It means a
tribe whose ancestors were criminals from time immemorial, who are themselves destined by
the usages of caste to commit crime and whose dependants will be offenders against the law,
until the whole tribe is put down as criminal. And hence if a Buddhuk or a
Sunoria(denitrified tribes)he is basically telling you that he is an offender against the law and
has been so from the beginning and will be so to the end, that reform is impossible, for it is
his trade, his caste, I may almost say his religion, to commit crime as said by Viceroy's
Council, J. F. Stephen, quoted from a report given by the Commissioner of East Berar.4 A
general opinion is also that the British looked at tribes in India the way they dealt with
gypsies in England so to provide an insight into the colonial government's approach to
nomads in this subcontinent. "Vagrancy, wanderlust, lack of stability and general purpose in
life, restlessness and aimless- ness - these are the accusations that plague all itinerant
communities". Nomadic communities are notoriously difficult to control and govern, to
administer or tax. In fact in England "all laws relating to the gypsies were to protect the
settled communities from itinerant ones and never the other ways around". 5 The Habitual
Offenders act was passed after the CTA was repealed and aimed to classify people not
according to their caste or tribe as criminals but the persons record of systematic nonbailable
offences. This shift in the act gave it a more purposeful intent and also upheld the essence of
the Indian constitution (equality based on religion, race, sex ,place of birth etc)but was still
unjust and discriminatory in general in some way or another. The habitual offender’s act was
passed for the purpose to deter professional criminals based on their propensity to commit
crime and the tribes which were earlier notified as criminal tribe were changed to DE notified
tribes or Vimukt Jatis. The name might have changed and the classification also changed

Published by: Cambridge University Press on behalf of The British Society for the History of Science Stable URL:
http://www.jstor.org/stable/4028233
4
IOR Legislative Council Proceedings, V/9/11-13, 410-20
5
Ethnology and Colonial Administration in Nineteenth-Century British India: The Question of Native Crime and
Criminality, Mark Brown, The British Journal for the History of Science, Vol. 36, No. 2 (Jun., 2003), pp. 201-219,
Published by: Cambridge University Press on behalf of The British Society for the History of Science Stable URL:
http://www.jstor.org/stable/4028233
quite evidently but the constant and chronic discrimination faces by these marginalised
people looks to be same. The de notified tribes and vimukt jatis are still branded as criminal
tribes and are looked down in the society no matter what. The habitual offenders act was
enacted to reform the Criminal Tribes act and in order to cease the discrimination it resulted
in. Although the purpose was partially met , It still needs to be fair and should not pollute the
morals and ideas of the Indian constitution.

Since we now have a faint picture of why the Criminal tribes act was passed andw why it was
repealed and habitual offenders act was passed in place of it ,I can now go on to explain some
more important questions such as which people came under the prevue of this act ,whether
the Habitual offenders act is in consonance with the constitution of India and the grounds on
which people who fall under this act face criticism ,as to increase our understanding and to
further critically analyse the act.

The Criminal Tribes Act was to apply to 150 notified castes of 'hereditary criminals' in
Hindu system and later other communities were also brought under it. In India this was not
based on the notion of genetically transmitted crime but rather as a community profession
passed on from one generation to the next and the reform and rehabilitation of these groups
was sought through a policy of social engineering that was rather quaintly called
'criminocurology' by the Salvation Army that was placed in charge of many of the settlements
for these so called 'Criminal Tribes'.6 T.V . Stephens a member of viceroys council while
introducing the act stated that the only way to prevent these people from commuting crimes
would be to exterminate them.7 The tribes that were notified under the CTA faced persistent
discrimination but after independence, when the act was repealed and a reformatory act was
passed ,which was the habitual offenders act. As most of the nomadic groups didn’t not fit
into the British notion of civilized and in order to control them they were forced to stay in
certain settlements, they had to carry an I card with them all the time, roll call every single
day of their lives thrice a day and inform the administrator about his whereabouts which
violated the basic principle of an individual right to life and personal liberty and even after
the act was repealed it still did not address this menace of “history sheet”. Although the

6
Review: Dishonoured by History, Branded by Law, Source: Economic and Political Weekly, Vol. 37,
No. 5, Money, Banking and Finance (Feb. 2- 8, 2002), pp. 391-392, Published by: Economic and
Political Weekly Stable URL: http://www.jstor.org/stable/4411683 Accessed: 13-09-2017 16:55 UTC

7
Wicked city,page 14
generalization of criminal activity related to caste/tribe was taken out of the prevue the act
still haunted the de-notifed tribes as they still face discrimination in their day to day lives and
are still looked at as criminals. Dilip D’souza in his work points out how pardhis are routinely
picked up by the police everytime there is a crime in the area and are beaten in the police
station, he also discusses the case of pinya kale who also was subjected to injustice by the
police and beaten to death in the police station.8 This sort of exploitation and stereotype is a
regular affair in our system under this act. Recently in 2008, in a public hearing in Bhopal,
the group lamented on how the police suspected them for every crime that took place ,picked
thir husbands up and extorted money from them. They were beaten up if found near a
respectable colony on the grounds they they must be loitering around to steal. The chief
minister of Madhya Pradesh had also described Pardhis as “ethnically criminal”9. The UN
committee on racial discrimination in 2007 also stated that tribes which were listed under the
criminal tribes act were still stigmata in india by the habitual offenders act 195210. Criminal
tribes which came to be known as DE notified tribes face stereotyping and discrimination
even in today’s world and how surveillance, history sheet, and data bases were exploited by
the police and the authority to supress the so called predatory class termed by the British.

As stated earlier that The Habitual Offenders act hinders the basic and the fundamental right
of an individual to live his life the way he wishes to , we now go on how and whether the
Habitual Offenders act is violative of the fundamental rights guaranteed by the constitution.

Classifying people as criminal clearly on the basis on caste is clearly violative of the
fundamental right guaranteed to us by the constitution under article 14( provides for equality
before the law & equal protection within the territory of India and prohibits discrimination on
grounds of religion, race, caste, sex or place of birth, or any of them). This right is clearly
violated under the criminal tribes act but not under the habitual offenders act as there is no
discrimination based on the race, religion, caste etc of a person under the latter act. Similarly
it also infringes article 15 as a person is discriminated on the bases on ones caste ,only in the
criminal tribes act but not under the habitual offenders act. Another topic of ambiguity is
whether constant surveillance infringes a persons right of privacy which comes under article
21(Puttaswamy case),yes as when someone’s keeps a constant check on your activities he is

8
Susan Abraham,steam or ill call you a thief, ‘criminal’ tribes of India, 34 EPW 1751(1999)
9
S.Viswanathan, Suspects Forever ,The frontline , Vol. 19, No. 12,june 8-21,2002,
http;//www.hinduonnet.com/fline/fl11912/19120450.htm
10
CERD/C/IND/CO/19, May 5,2007. Available
at:www.ohchr.org/English/bodies/cerd/docs/CERD.C.IND.CO.19.doc-2007-10-22(visited on October 27,2010)
aware of that person’s life regardless of the fact whether he wants to share it or not and hence
his privacy is also affected. Article 19 (1) (d), right to move freely throughout the territory of
India which i feel in the case of surveillance is partially affected as your movement is not
restricted by any tangible source but your movement may be restricted as your mental
element may get affected since you know that someone is constantly on a watch. The idea of
“presumption of innocence” which is innocence until guilt is proven is also violated by the
Criminal Tribes act and not by the habitual offenders act as in the former a clan/tribe is
presumed to be criminals by birth and not by the natural means of justice.

To clarify my proposition further I shall refer to a very popular cases which has helped in
shaping the laws related to this topic. In Kharak Singh V. state of U.P, the appellant Kharak
Singh has been charged for dacoity but the charges are dropped due to lack of evidence.
However ,he alleged that his name was put down on the ‘history sheet’ and that he had been
put on surveillance and that his right to movement (article 19(1)(d)) and article 21(right to
life and personal liberty) has been infringed11. The state argued that the action of the state did
not violate the fundamental right of the appellant as the act of surveillance was done under
confidentiality and did not affect his movement tangibly or intangibly and that it was done for
public order and hence fall under the reasonable restriction of article 19. The SC ruled that
neither surveillance or knocking on the appellants door infringes article 19(1)(d) of the
constitution but agreed that the right to life and liberty was violated when the police knocked
on the door at night for their own satisfaction.

Also in the case, the fact the the order was an executive order and not a statutory in nature
did not meet the criteria hence it was struck down to be unconstitutional.

From some of the cases (Kharak Singh, Bhave Lakhani etc) held surveillance to be
constitutional and are looked at safeguards to prevent misuse and at the same it the SC also
concluded that right to privacy can be curtailed in the ‘interest of the state’. As demonstrated
before in the article that the person affected are usually ones who belong to the lower
economic strata of the society and ones who have been exploited from the British rule who
are not even aware of their rights and expecting such people to file a case is quite unrealistic.

11
Denotified Tribes or Vimukt Jatis of Punjab Author(s): B. P. Singh Source: Indian Anthropologist, Vol. 40, No.
2 (July - December 2010), pp. 71-77 Published by: Indian Anthropological Association Stable URL:
http://www.jstor.org/stable/41920128 Accessed: 13-09-2017 17:00 UTC
 Conclusion
The conclusion that I have drawn from critically analysing the acts is that ,the criminal tribes
act which is the source and led to the inception of the habitual offenders act was
discriminatory and stereotyped people on the basis race/caste/tribe which is against the very
concept of natural justice and equality in a society.

The reformed act, the habitual offenders act, which is also widely critiqued for just being a
name-sake change and not a reformatory change in the actual law itself. Although the
habitual offenders act did not discriminate people according to their ethnicity/tribe etc it still
has a lot of loopholes and is still discriminatory towards people as it violates some of the
fundamental right guaranteed to the citizens by the constitution.

Although the habitual offenders act seems to flush out some unscrupulous practices in our
country it still fails to completely address the problem of discrimination faced by the DE
notified tribes. The colonial branding of some of the tribes in our country is still carried on
and this stigma of social injustice is practised at many levels in our society. Exploitation of
these tribal people for money, control and dominance of one caste/tribe over other still
continues to be prevalent in our society where a reform is much needed.
 Bibliography

1) Ex-criminal tribes of Punjab, http://www.epw.in/hi/journal/2008/51/special-

articles/ex-criminal-tribes-punjab.html – Birendra Pal Singh
2) Review: Dishonoured by History, Branded by Law- Dilip D'Souza
3) CRIME, GOVERNANCE AND THE COMPANY RAJ: The Discovery of Thuggee
Author(s): Mark Brown, Oxford university press.
4) The Criminal Tribes of India Author: K. M. Kapadia
5) Steal or I'll Call You a Thief: 'Criminal' Tribes of India Author(s): Susan Abraham
Source: Economic and Political Weekly, Vol. 34, No. 27 (Jul. 3-9, 1999), pp. 1751-
1753
6) Review: Crime and Criminality in British India- Dilip K. Das
7) Denotified Tribes or Vimukt Jatis of Punjab Author: B. P. Singh