Social Death and Overcriminalization in the Framework of Social Pressure

Summary of Arguments

The article raises the question of overcriminalisation and situates it within the historical processes that determine which communities hold power in a society and whose customs form the norms of said society. Using Edward Said’s Orientalism and Radhika Singha’s work on Crime and Justice in Early Colonial India, we will connect the racialisation of an “Other” and how it could translate it into unjust laws. Using Henry Schwarz’s work on Denotified Tribes, we try to analyse the Criminal Tribes Act within the framework of Andrew Ashworth’s conceptualisation of the “preventative functions” of crime, and how it could lead to a drastic overcriminalisation of certain communities, and have far ranging implications on monitoring and surveillance, and in turn, state violence against people. The implications on monitoring and surveillance are briefly discussed using Mrinal Satish’s article on Police Databases. We also discuss one of the most direct consequences of criminalisation – imprisonment, and the consequences it has on the community that has been criminalised.

Social Death and Overcriminalization in Words of Laxman Gaikwad’s Uchalya

The earliest distinction made between Criminal Law and other forms of Law such as Civil Law is that Criminal Law is an offense against a society and the state, not just another private party. An action that is labelled a “crime” by the law carries with it certain moral and social implications that not just affect the norms of that society but the way those branded “criminals are treated.” Hence, we must carefully deconstruct the gaps in the framework of criminalization and the discourses surrounding it to understand the origins of certain types of overcriminalization, especially the kind that concerns us presently, that is the branding of certain classes of those inhabiting the earth as “status criminals.” It is both unsurprising and saddening that the dehumanization of certain classes inhabiting your world is consistent with the dehumanization of many communities here during our time. During the colonial period in India, racial othering done by the British colonial forces, as well as an existing caste system, led to many nomadic tribes and castes being registered as “criminals” by birth. After the end of British colonialism, the act that criminalized them was repealed and hence these tribes came to be known as “De-notified Tribes, Nomadic and Semi-Nomadic tribes.”

The Death of Criminalization Policy Due to Social Pressure

The urgent question to be answered is if there is a need for a Constitutional Right not to be criminalised. Dennis J. Baker says that “The right (to not be criminalised) is not only about having the freedom to do as one chooses so long as it does not wrong others, but also about not being subjected to the harmful consequences that flow from unfair criminalisation.” In this context, Latika Vashist argues that there must be a policy of criminalisation that is guided by “constitutional principles” as opposed to public morality. According to her, the interpretation of rights in India is dominated extensively by “societal values and notions of good and bad,” which ultimately leads to the tenets of criminal law being shaped by normative structures rather than by guiding Constitutional principles. She concludes that “The state coalesces with hegemonic power structures through its policy of criminalisation,” leading to violations of basic human rights by the State. 

The Historical Processes Leading to Social Death

It is important to highlight the historical processes that lead to such societal values becoming laws of the land. This process of dehumanization of certain classes often springs up as a tool to control certain populations under the pretense of reforming them into more “civilized beings. Edward Said, in his seminal work “Orientalism,” talks of how stereotypes constructed of the “Other” become institutional knowledge, which is then easily used to inflict violence upon these stereotyped communities or people. This violence often takes the form of overcriminalization.

The Social Death and Sterotypical Portrayal of People in Colonial Times

Historian Radhika Singha traces the journey of Otherization inflicted upon such communities by the British Colonial forces. From 1772 to the notorious passing of The Criminal Tribes Act (CTA) of 1871, the so-called anthropological treatises by Colonial officers painted nomadic tribes as savage and prone to thievery, beggary and prostitution and statutory provisions were then made on the basis of the knowledge which allowed the British East India Company to label all members of these so-called “Criminal Tribes” as criminals by birth. In 1932 in India, during the colonial period, a British scholar and a Lieutenant-General of the Empire, George MacMunn wrote a book entitled the “The Underworld of India,” and in a chapter on the “Criminal Tribes and Classes,' he writes : 'They are absolutely the scum, the flotsam and jetsam of Indian life, of no more regard than the beasts of the field.” Here too we can observe the labelling of a class of people as not fully human but beast-like. 

The Double-Edged Sword and Social Death of Colonial Policies

Radhika Singha highlights the double-edged sword of Colonial policies such as these. On one hand, the British took pride in bringing a liberal, rational law of law to a land they saw as savage and backward. On the other hand, with the aforementioned “rational law” as a premise, they used social determinism and biological essentialism, including racial science and eugenics to deprive marginalised communities of their rights and brand them as criminals. She calls this the “liberal despotism” of the British colonials. We must situate this propensity of the colonisers within the ideas held forth by Edward Said. In Orientalism, he talks of the negative stereotypes of Arab subjects propagated by Western Colonisers and comments upon their dehumanisation : “Always there lurks the assumption that although the Western consumer belongs to a numerical minority, he is entitled either to own or to expend (or both) the majority of the world resources. Why? Because he, unlike the Oriental, is a true human being…” He adds that “A white middle-class Westerner believes it his human prerogative not only to manage the non-white world but also to own it, just because by definition 'it' is not quite as human as 'we' are. There is no purer example than this of dehumanized thought. In a sense the limitations of Orientalism are, as I said earlier, the limitations that follow upon disregarding, essentializing, denuding the humanity of another culture, people, or geographical region.'

Criminalisation of Marginalised Communities

It was almost inevitable that Colonial policies used these stereotypes to criminalise those considered less than fully human. The CTA among other equally horrific provisions, empowers Local Government to declare any tribe, gang or class as a “criminal tribe,” if there is reasonable belief that said tribe or class is “addicted to the systematic commission of non-bailable offences.” After a tribe is declared criminal, it further establishes provisions for registration of the tribes, for restricting their mobility and for “reforming” them as deemed suitable. It must be kept in mind that reforming in this case meant separating the children of the tribe from their parents and promoting Christianity as opposed to their indigenous faiths. Reform also meant being forced to work in cotton mills, or doing hard labour in camps established by the British.

It is a necessary exercise to place the aforementioned provisions in the overarching framework of criminal law. Andrew Ashworth, in his paper on “Conceptions of Overcriminalisation,” describes two core functions of law. The primary function would be the declaratory function, that declares the forms of wrongdoing that are serious enough to justify the corresponding censure, conviction and punishment. The secondary function is “The Preventive Function,” which we are concerned with here. The preventive function of the law seeks to label such actions or omissions that are “prohibited on the basis of their propensity to lead to significant risk or danger to an interest protected by the law, and which justify the censure inherent in conviction and punishment.” One can classify the labelling of certain classes as status criminals as a preventative function of Criminal Law, where a prohibited act need not have occurred. To commit a crime that falls under the ambit of “preventative” provisions, one must take a “substantial step” towards the commission of a certain crime. Overcriminalisation occurs when the need for a substantial step is replaced with the “broadest of act requirements…” which would ultimately lead to the “police pressuring suspects to confess, as little else is required for conviction.” 

Construction of Criminalization snd Subsequent Death in the Social Circle

The CTA contained several broad provisions which could render any person of the criminal tribe guilty and led to widespread violations of human rights. Henry Schwarz, in his book “Constructing the Criminal Tribe in Colonial India,” identifies four aspects of the Act that were enforced most rigorously. These aspects being (1) registration of nomadic tribes (2) forced settlement, increased monitoring and rehabilitation (3) separation of children from their parents and (4) providing livelihood to the settled communities. If we apply these provisions to the theoretical points raised by Andrew Ashworth, we can conclude that for a person categorised as ‘criminal’ under the Act, leaving their registered area or settlement camps without police permission, or following their traditional livelihoods would be seen as a “substantial step towards the commission of a crime” due to the very nature of being a criminal by birth. The preventative functions of criminal law are most exploited here, whereby upon deciding that one class of people are inherently criminals, even their “broadest of acts” will be constituted as taking a “substantial step” towards committing a crime.

We must also take a moment to consider the consequences of such extensive monitoring. Mrinal Satish also talks of the consequences of police forces maintaining a database. Using the Karnataka Police Manual as an example, he talks of the Rule which orders the Local Police to maintain a database of all those who are “addicted to crime,” a turn of phrase that bears a chilling resemblance to the long-repealed Criminal Tribes Act. The Manual also talks of “Professional Criminals,” and states that “if a first offender belongs to a family of criminals, he/she should automatically be designated as a 'professional criminal.'” The ideas of monitoring that was propagated through Criminal Tribes Act has had several disastrous consequences, where police even today can maintain a database of those people they hold under suspicion, without actually committing any wrongful act! In Hyderabad, the police had started maintaining what is popularly known as “Rowdy sheets.” Any apparent crime in their area of residence would lead to a round-up of the “suspects” or “Rowdy sheeters” most of whom end up being from this database maintained. This very year, in 2019, the City Police Commissioner of Hyderabad launched a “Rowdy Sheeter Module” that makes the photos of those on these sheets available to all police forces within the city, and enables field officers to “geo-tag” the location of such suspects.

The Main Aspects of Social Death

Andrew Ashworth also stresses upon the importance of a “consequentialist” analysis. One of the direct consequences of being held guilty of a crime is punishment and imprisonment. Members of De-notified tribes and Transgender people being harassed by the police and being imprisoned under the Public Nuisance and anti-Beggary laws is the norm in India. Therefore, we must consider what the effect of imprisonment has on members of such communities who are specifically branded as criminal. In the first chapter of his book, “Prison and The Social Death,” the scholar Joshua M. Price recalls the three aspects of “social death”, namely, being subjected to systemic violence; generalizing humiliating treatment; and “natal alienation.” Natal alienation is the separation of parents from their children. The author talks of the experience of prisoners in America, especially those whose imprisonment is in many ways due to racialised overcriminalisation. One can draw parallels to the Indian state and their overcriminalisation. The forced separation of children and parents belonging to the Criminal Tribes has led to inter-generational trauma, isolation and lack of even familial support systems. The National Commission For Denotified, Nomadic and Semi-Nomadic Tribes in its 2008 report said, “Suffering frequent police oppression, arrest, and confinement in prisons, their self-esteem is abysmally low. Under these circumstances, they have become incessantly migratory, as a consequence of which their group cohesion and family bondage grievously suffer, contributing to an atomistic (or individualistic) living.” Such conditions of life often lead to a cycle of economic deprivation and social vulnerability that is very hard to root out, especially as family ties are severed and the societal stigma of being a prisoner prevents socio-economic mobility, especially if you are already from a marginalised community. 

Even as the Criminal Tribes Act stands repealed since 1952, it is important not to discount the legacy of the CTA that asserts itself in acts like the Habitual Offenders Act, is currently valid in several states in India. “Eunuchs” as defined in the CTA are now soon to be defined under the “Transgender Bill” which simultaneously refuses to give reservations in the public sector in employment and education, also criminalises their available options of livelihood, namely begging and sex work. Hijra gharanas or family systems will also be criminalised by provisions that would label them as “sex traffickers,” as the Government is keen only to recognise natal families and not alternative family systems that have been built out of necessity. 

Conclusion

It is clear that the end of certain inhumane legal provisions will not put an end to the systemic discrimination that occurs and that in fact, the systemic discrimination predicated on racist, sexist or casteist knowledge will work its way into legal systems one way or another. It then becomes necessary to combat the question of overcriminalisation not just through legal reforms but through structural changes as well. “Agitate! Educate! Organise!” is the famous credo of Dr. B. R. Ambedkar, who was the first Law and Justice Minister of India and who spent his life fighting for many marginalised communities within India. It is possible to bring about a change to the perceptions and the harmful “knowledge” that those in power hold by using all the tools available. I sincerely pray that these arguments presented are given their due consideration by the Courts. Godspeed.