The makeup of the present criminal justice system points to a bias against Scheduled Tribes or Adivasis, who accounted for around 13 per cent of total number of convicts and 10 per cent of the total under-trials in Indian prisons, despite comprising 8.7 per cent of the total Indian population, showed data from the National Crime Records Bureau in its prison statistics report August 27, 2020.
This number did reduce by a small margin, compared to data from 2001, that showed 15.2 per cent and 13.2 per cent of the total convicts and under-trials respectively were Adivasis. This disproportionate percentage of Adivasis reported to be in prison, however, was just the tip of the iceberg.
“Depending on the category of forest, taking a twig can become a crime as well,” said Shankar Gopalakrishnan of the Campaign for Survival and Dignity, a national forum of organisations that work on tribal land rights. “But with the coming of the Forest Rights Act, 2006, these laws are obsolete. So, these convictions must not happen,” he added.
A disproportionate amount of power was held by forest department officials, whether under provisions of the Indian Forest Act, 1927, state forest laws or the Wildlife Protection Act, 1972, said Shomona Khanna, a Supreme Court lawyer.
“Basic protective principles of criminal jurisprudence in the Constitution and the Criminal Procedure Code — such as presumption of innocence and burden of proof — are done away with when forest offences are involved,” said Khanna, a former legal consultant for the Union Ministry of Tribal Affairs.
Forest department officials have the powers for search and seizure, arrest, investigation, determination of fines and compounding offences, in the case of forest offences.
This was the exception rather than the rule as these powers were ordinarily distributed between the police and judiciary, according to Khanna. “Even within the police, this authority is distributed, bringing checks and balances. But in forest offences, all powers are with one single department,” she added.
Trials in such offences can go on for a year or more, with Adivasis not getting access to proper legal aid, pointed out human rights lawyer Vrinda Grover, in The Adivasi Undertrial, a Prisoner of War: A study of undertrial detainees in South Chhattisgarh, a legal research study.
“Most of these protracted trials ended in acquittals, posing a serious question on the legality and legitimacy of the deprivation of personal liberty of Adivasi under-trials,” she wrote in the study.
Most forest cases do not reach courts as the matters are ‘settled’ by forest department officials. In the rare event of a case being sent for prosecution to the courts, however, Adivasis face another challenge, according to Khanna. Most forest offences went directly to a chapter of the Criminal Procedure Code called the ‘summary trial’, where ordinary procedural protections were done away with, she explained.
The court directs a punishment — usually a fine — on the spot with no further ado, if the accused pleads ‘guilty’, with the alternative being a long incarceration during the trial, said Khanna. “This is because Adivasis find it more difficult than others to obtain competent legal representation and are also viewed as flight risks by the judiciary, making bail more difficult,” she added.
While most colonial laws underwent rigorous scrutiny and significant reform under the Constitution, this was not the case with forest laws. Provisions related to bail under the Wildlife Protection Act mirrored those under the Unlawful Activities (Prevention) Act, Khanna pointed out.
Experts also said conviction under forest laws must be obsolete.
India had not ratified the International Labour Organization’s Convention 169 — concerning indigenous peoples and tribal peoples — that formed a large body of international law instruments that can protect Adivasis within the Indian judicial system, said Khanna. “It is unacceptable that instead of adhering to these commitments, the criminal justice system in India disproportionately punishes and incarcerates the Adivasi,” Khanna said.