Thinking of Crime: The State,Migrant Population and the Missing Justice

Who Are India’s Denotified Communities?

Sher Ali Afridi. The name may make no sense to us in 2021. Though I cannot say that Afridi is an entirely forgotten name. Ali Afridi was from that area of erstwhile Punjab Province which now is in Pakistan. A Pakhtun and a former sepoy in the Khyber Agency, he lived a short life during colonial times. He was arrested and transported to the Andamans for serving his jail term. This was almost a quarter century before the construction of the cellular jail had commenced in 1896 and a few years after the first batch of some 800 ‘expelled’ persons was packed off to what is now Port Blair. Afridi, a lover of freedom, had his fleeting moment of glory when he succeeded in killing Lord Mayo. Popularly known as Mayo in India, born in 1822 and educated at Trinity College, Dublin, Richard Southwell Bourke, the 6^th Earl of Mayo, was posted to India in January 1869 as Viceroy. He is remembered for improving relations between the Afghans and the British. In India, he is generally remembered for carrying out the first ever caste-based census. In February 1872, as Viceroy he visited the Andamans where he was fatally stabbed by Sher Ali. What was the reason? Barely 15 weeks before the murder, Mayo had given a green signal to the first Criminal Tribes Act of India (CTA) that turned a large number of innocent persons into criminals.

The work that led to the CTA, 1871, had started several decades ago. William Henry Sleeman (1788–1856) had been appointed specifically to ‘crush organised gangs’ during the 1830s and 1840s. He did his work industriously by listing every group of armed persons and every armed clash that took place in India. He listed the people involved by their caste and community names. In the process, he floated an immensely popular idea that there were hordes of thugs freely roaming about in central India. Victorian imagination in England was ready to lap up the thugee story. Indians, in contrast, were completely unaware of Sleeman’s action and its potential for creating undesirable, long-term consequences. The most dramatic result of Sleeman’s activities was the formulation of the CTA two decades later. The less dramatic, but far more destructive consequence, was that people in India somehow accepted the idea that some sections of society were indeed ‘naturally criminal’. One does not know if Afridi had foreseen the demonisation of communities branded by the CTA. Whether he did or did not, the tag of criminality has continued to stick on to a large number of Indians, and for far too long. One might tend to think that communities that were brought under the purview of the 1871 Act and all its subsequent revisions were, in a way, like other classes, communities and groups, all victimised by colonial rule.

That they certainly were, but their real tragedy began after colonial rule ended and India gained Independence. Under British rule, these groups were restricted from frequent movements––going out of the specific areas within which they were restricted or confined to reformatory settlements, deprived of their traditional livelihood and land ownership of any kind. When India gained Independence, it had adopted a new Constitution and had started preparing for its first general elections, but the ‘criminal’ tribes (CTs) were still restricted to their areas of confinement and settlements. It was not until August 1952 that they were declared ‘free’, but this freedom came with a catch. Their reformatory settlements were certainly thrown open, but after several generations, these communities had wasted away in their circumscribed areas, undertaking unpaid compulsory labour for colonial civil construction projects, and ultimately they had nowhere to go. The life of any individual without land or livelihood is difficult enough; but if in addition the person is burdened with social stigma, living becomes far more unbearable. The CTs, now ‘denotified’ from 1952 onwards, had to face a wretched life. They became non-persons, drowned in the dung heap of scorn, contempt, atrocity and utter poverty. They had missed the relief bus as most states had already formed lists of Scheduled Castes and Scheduled Tribes (SC/STs). The Denotified Tribes (DNTs) remained largely out of the safety net of social justice. So far, no systematic enumeration of all ‘denotified’ CTs has ever been carried out, but a statistical projection on the basis of the 1871 and 1931 population census indicates that a close-to-accurate guess would place their present population at about 140 million. Although these people normally try to live without making themselves noticed in any conspicuous way, the stigma has not ceased to chase them. Over the last 25 years, ever since I started working with the DNTs of India, I have noticed that single column, short news items in district-level newspapers in regional languages about a person who has been maimed to death, mob-lynched or picked up by the police or found dead in police custody often points to, on close scrutiny, a DNT: inevitably sacrificed on the altar of our total imperviousness and ignorance about their existence. An 8-year-old Bakerwal girl raped and murdered somewhere in the foothills of the Himalayas, a Pardhi woman forced to undress herself in full view of a crowd and asked to drink someone’s urine in Maharashtra, a 70-year-old Bajania Nat beaten to pulp on the mere suspicion of stealing a green gourd, to name just a few incidents, fail to rouse India’s conscience in the same way a Floyd George’s breathlessness in Minneapolis, Minnesota, moved the entire world to protest and repentance.

The ‘Suspected Other’ in Human History

In order to see if the DNT story is a unique historical saga in human history, I would like to present the following random overview of some known migrations. Pre-historic Homo sapiens spread out from their source to all continents, braving unimaginable odds and creating the possibility of humans becoming a front-runner for the process of evolution of life. Had they not risked their lives and moved out, we would not have been who, what and where we are today. Their original migration and all subsequent migrations, stretched over thousands of years, have been at the heart of the human advent. It was but natural that at the dawn of history as known to us, the memories of those long migrations and what humans had learnt out of them formed their universe of knowledge. Whether it is the Ramayana for India or the Odyssey for Greece, epics normally mark the inauguration of great civilisations. As their generic hallmark reveals, the epics present heroic stories of great migrations. Throughout known history, migrations have spurred, aided and advanced ideas, expanded knowledge stock, culture and the horizons of human thought.

During the relatively recent history of the last five hundred years, it was the phenomenon of migration that brought people and nations to the threshold of modernity. In post-industrial societies, outward migration has been a significant factor contributing to economic transitions as well as political trends. The colonial era resulted in an unprecedented transformation in the very nature of self-perception of traditional communities in several continents and the way they aspired to organise themselves as political entities. Large-scale migrations from Europe to Australia and North America contributed to those historical developments. Almost as a nemesis of colonial history, throughout the twentieth century migrations from Africa, Asia and East Europe to the Western world occurred on an unprecedented scale.

The United Nations compiles its Report on Migration every two years. The last report that I have seen was put out in 2017. It records that approximately 258 million persons lived at that time outside their country of birth. Nearly three-quarters of all international migrants were of working age. High-income countries hosted 64 per cent, or nearly 165 million, of the total number of international migrants worldwide. It should interest us to know that Indians were and are at the top of the international migration chart. There are 16 million Indians living outside India, described as diaspora. Next in number come Mexicans (12 million). Other countries with large diasporas include the Russian Federation (11 million), China (10 million), Bangladesh (7 million) and lastly, Pakistan and Ukraine (6 million each). Every Indian knows that the aspiration to go out of India for education and work is seen by general consent as a positive trait. The UN report confines itself to international migration alone. Within India, if we were to take into consideration the inter-state and inter-lingual migrations, the magnitude would be much higher. Taken together, probably, more than half of India’s population is migratory today. Historically, migration has quickened the human advent and contributed to a global cultural diversity. However, since implicit in it is a challenge to the idea of the nation, the nation-state does not take kindly to this phenomenon.

In the United States, the Donald Trump administration had attempted to create in 2019 a regulation to allow authorities to indefinitely detain migrant families who illegally cross the border. The regulation replaced an older court agreement known as the Flores settlement that had provisions for limiting the duration for which migrant children could be detained. The Trump administration had been averse to the idea of continuing the provision. The new regulation sends out a chilling message to families attempting to migrate and the rest of the world. Trump said, in a sentence that not just Spanish speakers but also English speakers may have difficulty in fully comprehending, ‘One of the things that will happen, when they realise the borders are closing—the wall is being built, we are building tremendous numbers of miles of wall right now in different locations—it all comes together like a beautiful puzzle’. Clearly, the post-democracy state has commenced a war on migration. At home for us, the National Register of Citizens (NRC) is this horrifying part of the ‘beautiful puzzle’ that the administration has constructed.

Migratory communities often look like floating mobs which they certainly are not. Migrations have aided what we call ‘the human advent’ in no small measure. The word ‘mob’ appeared on the horizon of the English language towards the end of the seventeenth century. Initially it worked as a synonym for so many and such diverse words that, in comparison, ‘post-truth’ of our time should appear as the epitome of semantic lucidity. Following the French Revolution and throughout the nineteenth century, ‘mob’ provided an articulation for the ultimate in social contempt. It took about half a century before the human side of the undifferentiated crowd started receiving attention. This happened when ‘mobilisation’ in the positive sense as the first step towards revolutionary changes found its place in the political discourse. However, the compassionate view of the mob fully emerged when ‘the mobile’, in its earliest meaning as ‘the mechanical’, came into circulation as its complement. If mobs were human, then ‘mobile’—though moving—was all mechanical. Even when the ‘mobile’ was not entirely intended to be a machine-driven car, but a work of ‘kinetic art’, it was the mechanical side that was being highlighted. Mobs and mobiles were indeed at odds throughout the twentieth century, and they both remained at the heart of modern history which is either about revolutions in which mobs played great roles or about the Industrial Revolution in which mobile steel was crucial. Mobility, human or machine driven, has indeed been at the heart of modernity. Mobs of the twentieth century were sneeringly seen as people normally low on social or cultural memory. They were not rich, not upper caste, nor aristocrats.

It would not be inappropriate to argue that the seeds of this war on migration were sown during the period of colonial capitalism. In India, colonial rule brought in ideas of citizenship which affected the lives of traditionally migratory communities and resulted in their stigmatisation. The colonial idea of education and urban settlements as the driving engine of productivity too influenced the land-dependent agrarian communities and generated a relentless migration to urban spaces. Thus, during the process of colonialism, three distinct varieties of migration emerged as inherent social features of the life of modern nations. During post-colonial times, these varieties have acquired a much greater complexity as several historically unknown patterns of migration started emerging. These include the forced displacement of peripheral communities affected by development projects, migration resulting out of heavy resource exploitation activities, such as mining, migration resulting from an endangerment of traditional livelihood practices like agriculture and sea farming, migration related to rising economic aspirations and related to education needs and, then finally, migration induced by the desire to escape caste oppression. In other words, migration has been at once a factor contributing to economic and educational betterment as well as an indicator for deprivation and marginalisation of those communities.

The phenomenon occupies a central place not just in India, but in countries all over the world. However, the post-democracy state is no mood to extend sympathy to any inward migration. When no nation is willing to favour inward migration, people of no nation will provide opportunities for any outward migration. This static demographic condition will visibly harm economies and invisibly hurt the principle of diversity necessary for the continuation of evolution. The worst affected will be women and children. At present, nearly half, that is, 48.4 per cent, of international migrants are women. Female migrants outnumber males in all regions, except Africa and Asia. It is an easy guess that when the number of women migrants increases, the number of children too is proportionately on the rise. However, if the Trumps of the world insist on building walls on international borders, create detention camps and pile up regulations hostile to migrants, post-democratic nations will reverse history and recall the CTA necessary for analysis. Make no mistake, the majority among the migratory labour who walked hundreds of miles after the lockdown, many of them perishing on the way, were DNTs who have lived since pre-colonial times a migratory and nomadic life. The Indian state, and elite, upper classes and sedentary people failed to respond to the plight of migratory labourers because we have fully internalised the colonial branding and stereotyping of the DNTs. The recent Citizenship Amendment Act of 2019 (CAA) is a clear indication of the attitude which is deeply ingrained in our minds.

It was the Central Legislative Assembly of British India which first enacted the Foreigners Act 1946, thus giving the central government the powers to deal with ‘foreigners’ in India. The enigmatic definition of the term ‘foreigner’ in it was ‘one who is not Indian’. In December 1955, Parliament enacted the Citizenship Act within the framework of Article 11 of the Constitution which empowers Parliament to make provisions related to acquisition and termination of citizenship. The 1955 Act provided substantive and procedural norms for determination of Indian citizenship. In 2003, the central government promulgated the ‘Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003’. Rules 3 and 4 of the Citizenship Rules, 2003, provide an outline for the maintenance and preparation of the NRC throughout the country.

In 2015, building upon these provisions and rules, the Ministry of Home Affairs made an amendment in the Passport (Entry into India) Rules, 1950, and Foreigners Order, 1948, and allowed entry to persons belonging to minority communities in Bangladesh and Pakistan, namely Hindus, Sikhs, Buddhists, Jains, Parsis and Christians seeking shelter in India due to religious persecution or its apprehension, and had entered into India on or before 31 December 2014 without valid documents. In July 2016, the Ministry made an amendment in the Passport (Entry into India) Rules, 1950, and Foreigners Order, 1948, and substituted the word ‘Bangladesh’ for ‘Afghanistan and Bangladesh’ (Notification No: GSR 702 (E) and 703(E), dated 18 July 2016, published in Gazette No. 495). The Citizenship Amendment Bill (CAB) had been passed by the Lok Sabha in 2019, but had lapsed not yet having been cleared by the Rajya Sabha before the Lok Sabha term ended. Hence, the newly elected NDA government placed it once again before the Lok Sabha in December 2019.

It was against the backdrop of the CAA that the entire process of compilation of the Assam Citizens Register, as part of the NRC, was initiated for creating a National Population Register (NPR). Within weeks of the Modi government’s second term in power, the office of the Register of General of Citizens and Registration issued a notification under Rule 3(4) of Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003 for preparing and updating the population register between 1 April and 30 September 2020. In the following month, the Government of Assam, along with the Union of India, updated the NRC for residents in the state of Assam on 31 August 2019. This was done in compliance with a series of Supreme Court orders in the case, Assam Sanmiltha Mahasanga vs. Union of India W.P. (C) No. 562/2012 and All Assam Public Work vs. Union of India 274 of 2009. There were applications of 33 million persons in the Assam process of the NRC. The final list reportedly included 31.1 million persons and excluded 1.9 million persons. It is yet unclear as to what was the exact number of persons belonging to various religions excluded or included in the NRC in Assam. On 20 November, the Union Home Minister Amit Shah announced the plan for a pan-India NRC to be carried out. He asserted that the process of NRC was to be carried out in order to update a citizens list, but nothing would be done to harm any particular religion. In less than three weeks, the CAA was introduced in Parliament and was successfully passed in the Lok Sabha, a day before International Human Rights Day (IHRD), and in the Rajya Sabha, the day after IHRD. The chronology of its progress and the irony of its timing make it look even harsher than it is. Throughout the debate in Parliament and in days and weeks that followed, the words in Home Minister Shah’s televised Parliament debate statements,––understand the chronology––kept ringing loud and shrill through the length and breadth of India.

The response to the CAA from the media, jurists and civil society was not much different from the response received in Parliament from the opposition benches. However, a few more issus were raised by them. A bald summary of the issues and arguments raised in opposition to the CAA would be: The amendment is violative of the principles and basic values of the Constitution since it proposes to club together religion and citizenship. The criterion on which it proposes to offer citizenship is not based on any reasonable classification. It has no reason for including Afghanistan in the list of countries covered by the Act and no reason for leaving out other neighbouring countries such as Nepal, Bhutan, Myanmar and Sri Lanka. It is not a comprehensive Act as it does not talk of ‘other minorities’, such as nature-worshipping tribal communities who too face discrimination in Bangladesh and several minorities within Islamic subgroups. It makes no reference to other minorities ethnic groups such as the Meitei, Tripura, Marma, Tanchangya, Barua, Khasi, Santhals, Chakma, Garo, Biharis, Oraons, Mundas, Chakmas, Marmas, Tripperas, Tanchangya and Mros/Hindu illegal migrants from Sri Lanka. The cut-off date stipulated by the Act has no logical basis, and if religious persecution is the reason for the grant of citizenship there is no reason to believe that the perceived persecution has come to an end after the cut-off date. The religion of any person is not enough grounds to conclude that the perceived persecution is religious. Besides, in the case of those who migrated to India decades ago, it would be just impossible to provide any proof of such persecution.

It was also argued that the CAA would lead to a serious deterioration of India’s relations with Bangladesh and may result in placing the lives of non-Muslim communities covered by the Act in neighbouring countries in danger. The objective of the Act is discriminatory, unlawful and unjust. The classifications created by the Act bear no rational relationship with the stated objective of the Act. Besides, it leaves out persecutions of all other kinds arising out of views, culture, thought, expression and political turmoil in the neighbouring countries. Criticism also emerged with reference to the vast range of India’s ‘undocumented’ people, such as adivasis, denotified and nomadic communities, migratory labourers, homeless and orphans, zero-literacy sections of the population, single women, widows and a large migratory population. More importantly, the CAA brings into the definition of citizenship the question of religion, specifically excludes Muslims and Jews and thereby creates the space for legalising an anti-Muslim bias in the proposed National Register of Citizens and the National Population Register.

That the opposition came from political parties, a section of the media, organised civil society groups and jurists was not surprising. What surprised everyone within the establishment and outside it was that students on many campuses, young persons, Muslim women who had rarely entered protest sites and citizens who otherwise stay off political debates started assembling in various cities and towns to express their concern over the CAA and the two Registers proposed by the government.

During the months when the CA Bill was on the anvil, the Muslim community in India was constantly on tenterhooks, greatly worried and panicking over the documents required proving their claim to being legitimate citizens. They were generally reluctant to come out in the open and discuss the CAB––or even question its necessity. During those months, people of other faiths showed scant interest in the question. Of course, one major exception to this was Assam and the other Northeastern states that had witnessed the Citizenship Register process unfold over the last three-four years. It was natural, therefore, that the very first non-party, non-organised reaction to the passage of the CAA should come from Assam. But what was the least expected was that it would erupt from several other states. Reactions emerged from Kerala, Karnataka, Maharashtra, Gujarat, Madhya Pradesh, Bihar, Uttar Pradesh, Punjab and understandably in West Bengal and Delhi. Various state assemblies made announcements or passed resolutions amounting to the non-cooperation to the Register of Citizens and the Population Register. One would not have expected a full coverage of the protest from the national electronic media, which generally presents the issue from the establishment’s point of view, or from the national print media which normally leaves out news emerging from small towns far away from the national capital. Yet even they gave more than expected space for the protest. The regional and local media provided a much more realistic picture of the reactions. The social media brought even fuller reporting. Going by all of these media resources, it is clear that the protests have been taking place in more than 300 towns and cities in the country since the day the CAA became an Act.

Whether the government is deliberately fanning the debate as a cover for its dismal economic performance is another question. Whether the judiciary will find its much lost courage to displease the regime and protect the spirit of the Constitution too is a matter for anxious speculation. Whether the Register of Citizens and the Population Register will turn out to be disasters, as was demonetisation and the hugely complicated GST, is anybody’s guess. Whether the new-found accent on federalism will eventually amount to the political alignment of small and big political parties uniting to counter BJP and its alienated allies too is a matter that will interest TV anchors more than it interests protesting groups. What is of utmost significance as India enters the third decade of the twenty-first century is the emergence of the youth and women at the forefront of an important national debate. It is equally significant that they are espousing values of the Constitution and of humanism and articulating with an unprecedented precision a politics that is non-sectarian and non-divisive. Such a fundamental political change had occurred once in the times of the freedom struggle and under Mahatma Gandhi’s leadership. Since it had come to pass, the Indian political space has long been waiting for a complete change of the political idiom. For the last four decades, in particular, it has remained dominated by the idea of politics as the divide and rule game. The non-violent and spontaneous CAA protest, working cohesively yet without allowing any overt coordination, is a phenomenon that seems to indicate that the political idiom in India is in for an epistemic change.

Citizenship Under Stress

The ancient Greek language used holos to mean ‘entire’ and kaustos to indicate a ‘burnt object’. The compound word formed out of the two was holokauston. Almost a millennium later, old French brought into use the word holocaust. Not much in use, except in the ancient liturgical practices, the term was placed into political discourse by Winston Churchill to describe the killing of people in Armenia during World War I. Today, the world understands it as the elimination of nearly 1.7 million European Jews and gypsies during Adolf Hitler’s regime in Germany. The idea was floated in its initial phase as ‘the Final Solution’. The Hebrew word shoah, which means ‘a great calamity’ and is pronounced as sha-uh, is preferred by those who have gone through the experience and those who want to carefully avoid a theological connotation of holocaust involving the idea of ‘offering’. The shoah, or the sha-uh, was decidedly a shame for humanity and will be remembered for centuries as an inhuman act. A question that has been bothering millions of Indians and a large number of others outside India is the following:, ‘Is India sliding towards some kind of sha-uh? Is India destined to give up, alas, its cherished idea of secularism and make religious minorities people without entitlement to equal judicial relief and equal security of life and property?’ The very idea is so unnerving that one’s tongue refuses to utter these words. Yet, as events unfold in India today, one is compelled to ask this question.