Failing The Spirit Of Law On Affirmative Action – OpEd


The issue of caste throws open the floodgates of intellectualised criticism across India. Posturing depends, as always, on positions taken by birth, gender, or profession and in the order affected. Liberty is assured to those who reach out for it. Modelled on tenets that work along the lines of first-come-first-served, justice being available to those who make a bid for it, and more, the defences of contributory negligence, limitation lapses and provocations offset claims and nullify pleas. Law is within the reach of the privileged in a democracy, who comprise it too, brought within the reach of the marginalised few by Affirmative Action which, as a rule, fails a few. The failure of law is pointedly intended and practiced to a shameless perfection by legislatures elected by the powerful majority. A majority that reveals its true nature in the dark of the day or night to subjugate the weak, perform acts patently illegal but never defied, extorting consent by exerting undue influence in social, religious, economic, and political pecking orders. Reservation is the dole offered by the law of the land less to the weak who deserve them but flaunted as a barter to powerful groups, like the Marathas, who even manage to procure unwieldy constitutional amendments despite oppositions to legitimise their claims.

Caste confabulations are peppered with lofty insertions of reservation policies and penal sections guaranteed by the Atrocities Act, as ‘affirmative action’ is offered by the State in India, but insidiously kept out of reach by the same Majority they needed to be protected from, and preposterously backed by the State’s disdain. In Western India’s Maharashtra, for instance, a Caste Certificate is provided only on the fulfilment of a Domicile condition. According to an amendment in 2012 to The Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, an applicant for a Scheduled Caste (SC) certificate would have to submit a domicile certificate dating back to 1950. This cut-off year was fixed as 1961 for nomadic tribes, and 1967 for OBC candidates. To expect a member of a nomadic tribe to obtain a domicile certificate, for a caste certificate to avail State benefits, defeats the purpose of extending social justice to the tribe. Given the sheer nature of his existence, it’s an impossibility and reduces the entire exercise of Affirmative Action to a joke.

Consider this as a case in point: In January 2020, just before the COVID pandemic struck India, following persistent complaints by a group of affluent residents of South Mumbai, the local police and the civic authorities launched a ‘clean-up drive’ of the streets and by-lanes of India’s financial capital Mumbai’s oldest heritage precinct Colaba to rid the zone of Pardhis. Police vans drove into Pardhi-infested zones, driving away the ‘vagrants’ who left back their clothes hung for drying on parked vehicles, infants wrapped in cloth being overseen by older children, screaming the choicest of expletives. A Beggar Van arrived to pick up the children and infants who were then taken to ‘homes’ to be rehabilitated. Over the fortnight-long operation, most of the Pardhis were driven away from the roads to other areas, beyond the jurisdiction of the acting police and where they stayed without being apprehended, for the time that is. And, in the third week, they started to trickle back into the zone, one family at a time, darting furtive looks beyond their shoulders for a local policeman. And by the end of a month, they were all back to the streets…their ‘homes’ for over decades now but had ‘lost’ their infants to ‘police action’. Every Pardhi family ‘loses’ a few children to police action as a rule.

The Pardhis of Colaba, most of them born in the city, on public roads itself, live on the roads in South Mumbai, selling cheap Chinese wares to tourists in the zone in and around Taj Mahal Palace during ‘season’ from October through the yearend, till the next year’s March end after which most of them travel back to villages in rural Maharashtra. In the villages, they live in shanties on farms where men work as human scarecrows, standing in the centre of fields circling over their head stones tied to the end of a ropes to drive away crows and other flying pests. In turn, he gets basic food for his family and shelter by way of a simple thatched hut. After six months of stay, the family returns to Mumbai. 

The urban tribe happens to be one of the myriad Denotified Tribes (DNTs) which were historically been branded as Criminal Tribes by the British through a mischievous act of legislation, the ‘Criminal Tribes Act 1871’ and tagged with contempt over the years. The British had selectively branded a few communities as Criminal Tribes sometimes to quell their acts of nationalist resistance towards them. The Indians swayed by colonial sentiments continued to echo the narrative and conveniently plastered the stigma of caste on these who were kept at bay by the rest. Intriguingly, following the revolt of 1857 in which tribal chiefs such as Dhan Singh Gurjar were labelled traitors and considered rebellious, the entire tribe of Gurjars was castigated as ‘criminal’. This, despite their strong agrarian roots.

Also, communities surviving as petty traders, pastoralists, gypsies, hill and forest-dwelling tribes, and did not conform to the prevailing ideas in Europe regarding ‘civilized’ standards of living, that involved settled agriculture and waged labour, were categorised by the British as ‘criminal’. In 19th century Europe, people with nomadic lifestyles were considered a menace to society and were perceived as those who “required control,” or at least “some sort of surveillance”. That the British were not called out for profiling and violations of the Rule of Law and their hatred was portrayed, and sadly, at best, by a ‘progressive’ modern-day Bollywood as a Teen Goona Lagaan-demanding officer in a period Hindi film yet peppered with ‘love’ displayed by another ‘Britisher’ lady and a collective silent acquiescence of the lot to a pre-determined condition to relinquish the ‘lagaan‘ on losing a cricket match, at the end. The British hatred was shrouded by the love of another and romanticised by a populist climax.

While the Criminal Tribes Act was primarily directed at tribal communities, various versions of the Criminal Tribes Act included provisions limiting the rights of transgender and gender non-conforming individuals and communities in India. Hijras were targeted under the Act. By law, the British created the category of ‘eunuch’ to refer to string of unrelated gender non-conforming communities in India, including hijras, khwajasaras and kothis. The label was used, flippantly, as a catchall term.

So, those indulging in consensual acts of sex within the said communities were charged under Section 377 of the Indian Penal Code and acts of Dancing in public places and Performing acts of art were charged under relevant sections of the Criminal Tribes Act. That is till India attained her freedom and the application of Section 377 was restricted to acts of sex with children, animals, and male rape. IPC Section 377 fulfilled the lacunae posed by IPC Section 375 that was restrictively peno-vaginal and then, catered only to the adult woman. Many years later, in 2012, arrived Protection of Children from Sexual Offences Act (POCSO) to address offences against children. Only later, Section 375 was extended to non-vaginal intercourse and, later, with Criminal Law amendments, to the girl child. But, till date, the British are never blamed, in history, cinema or conversation, for their non-inclusive, skewed, biased construction and application of the law.

Intriguingly, in India the ones who resisted foreign invasions were the ones who were strategically ignored by history. That the ones who documented history would sit in judgement and pen down a selective version was a given. But, for the rest, and oddly in free India, to silently acquiesce and take that version as the Gospel, embark on battles against their own people offering contrarian versions and tag them as political agendas, is preposterous to say the least. So, India did go on to denotify, by law and letter, the tribes as being criminal but the offenders continued to perpetuate the bias towards these groups.

Cut to March 2020, as India approached her 75th year of Independence, and a nationwide call for lockdown made in the world’s largest democracy. In the sea of RT-PCR tests, curfew orders, work from home and police action, nobody even spared a thought for the millions of DNTs who depended entirely on peregrination and lived in public spaces apparently ‘illegally’ in the eyes of the law. They were driven away by the police, law-enforcers, stopped from performing in public, selling wares in zones where tourism had come to a halt, and forced to beg and live in abject penury. The ones who were on foot, enroute, were forced to stop and prevented from movement by police action. Inter-state and intra-state travel norms, drawn up by those oblivious of the survival needs of these communities, forced them to stay put wherever they had stopped and survive, with families in tow, on alms for months on end.

This spilled over to 2021, as one lockdown eased out to lead to another, worse in its wake. The tribals had no place to go. After all, the road was their home and they were being booted out by resident co-Indians, who, despite being cooped up safely indoors owing to COVID restrictions, held virtual meetings and urged the authorities to force them to act against the ‘dirty’ littering tribals and move them away from sight.

Now, with the third wave, hopefully the last and weakest of them all, upon India, the urban tribals, have begun returning from temporary make-shift rural settlements they stayed put during the lockdown, to their homes in the cities: To lanes where it’s ‘illegal’ for them to stay; and affluent residents will, once again, capture their images on smartphones from their home’s windows, share them on WhatsApp groups and force the police and civic authorities to act.

Again, at the sight of the approaching police van, forced into action by ‘networked’ resident groups, the tribals will run, leaving behind their washed clothes, spread out to dry on parked vehicles, meagre belongings…and infants, once again. The law on Social Justice will be upheld in letter but not in spirit. And free India will, once again, have failed its own brothers and sisters.

Gajanan Khergamker

Gajanan Khergamker is an independent editor, legal counsel and documentary film-maker with over three decades of media-legal experience across India. He is the founder of DraftCraft – an India-based think-tank. Through strategic writings and columns across global media; niche workshops held for the benefit of police personnel, lawyers and media students as well as key lectures held at corporate venues and in Law and Mass Media colleges and universities across India, he analyses and initiates 'live' processes that help deliver social justice through the media and legal channels. He trains students, journalists, lawyers and corporate personnel to ideate, integrate and initiate the process of social justice which “isn't the sole responsibility of the State”. He holds legal aid workshops and creates permanent legal aid cells for the deprived across India through positive activism and intervention. He furthers the reach of social responsibility by initiating strategic process by offering consultancy services to corporates in the rapidly-growing CSR scenario. To further the reach of social responsibility, Gajanan Khergamker works closely with state entities, law universities, educational institutes, research think-tanks, publications and media houses, corporates and public-spirited individuals. His areas of interest include public affairs, inclusion, conflict of interest, law and policy, foreign affairs and diversity.

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