How do habitual offender laws discriminate? | Explained

Supreme Court questions decade-old laws classifying criminals, as Government reveals 14 States still operate them.

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Months after the Supreme Court of India questioned the need for decade-old laws that have classified a section of criminals as “habitual offenders” across India, the Government of India has revealed in Parliament that such laws continue to operate in as many as 14 States and Union Territories.

In October last year, while deciding a matter on caste discrimination within Indian jails, the Supreme Court of India had called into question the very basis of the “habitual offender” classification, noting it was “constitutionally suspect” and used to “target members of denotified tribes”.

The recent information revealed in the Lok Sabha on March 11 by the Union Social Justice Ministry showed that some States like Gujarat have argued for the continuation of the law given that the “intent” of its use is not suspect, while others are in the process of discontinuing its application, like Punjab. States like Haryana have already repealed it. The government has said that the Union Ministry of Home Affairs communicates with States on these laws and the status of their repealing from time to time.

According to the National Commission for Denotified, Nomadic, and Semi-Nomadic tribes headed by Bhiku Ramji Idate, which submitted its report in 2017, the beginning of “criminalising” communities in India began with Regulation XXII of 1793, which gave magistrates “summary powers” to put to work or imprison certain communities or tribes based on suspicion alone. The Indian Penal Code of 1860 and the Criminal Procedure Code of 1861 further set up the mechanism to maintain a register of “dacoits and thugs”, before culminating it in the Criminal Tribes Act (CTA) of 1871. It was through this Act, the Idate Commission notes, that “the phrase ‘criminal tribe’ was first concocted, and the system of registration began”. The law provided for “a gang, a tribe, or a class of people” to be declared criminal, and was strengthened throughout the next few decades. In 1924, the law was applied to all of colonial India which increased the number of communities declared “criminal” exponentially, according to the Idate report.

Just as the Constitution of India was being adopted, the government’s Criminal Tribes Act Enquiry Committee Report (1949-50) was published, which recommended the repealing of the CTA, and encouraged “central legislation applicable to all habitual offenders without any distinction based on caste, creed, or birth”. In 1952, based on this report, the Government of India repealed all criminal tribes laws across the country, leaving the communities notified under these laws to be classified as “denotified, nomadic, and semi-nomadic” (DNT, NT, SNT) tribes.

By this time, States had already started enacting “habitual offender” laws across the country, such as the Madras Restriction of Habitual Offenders Act, 1948, which was extended to Delhi in 1951. Rajasthan passed a similar law in 1953, and over the next two decades more States — Andhra Pradesh, West Bengal, Karnataka, Goa, Himachal Pradesh, Uttar Pradesh, etc. — adopted laws on “habitual offenders”. All of them moved away from the premise of classifying communities as “prone to crime”, by defining a “habitual offender” in terms of the convictions they have had.