This blog continues Part 1 of the exploration of Caste Discrimination in Indian Prisons Case (Sukanya Shantha v. Union of India). The Supreme Court’s judgement marks a significant turning point in the fight against caste discrimination within India’s prison system. This section discusses the discriminatory treatment faced by members of denotified tribes and how the Court analyses the issue.

Another prejudicial practice the court discussed is the discriminatory treatment against members of denotified/wandering tribes. Denotified tribes are tribal communities that were ‘notified’ by the colonial government as ‘criminal tribes’ under the Criminal Tribes Act 1871. These criminal tribes are tribes, gangs or class or persons “addicted to systematic commission of non-bailable offences” [97]. Wandering tribes are those that do not have a fixed place of residence. The colonial government had the power to forcefully settle these tribes at one place and declare them as a criminal tribe if no “lawful occupation” that connects with their wandering can be found. Being notified as criminal tribe invited higher scrutiny and surveillance by the British government, including confiscation of land and other possessions. However, post-independence the Criminal Tribes Act 1924 (a product of several revisions in the Criminal Tribes Act 1871) was repealed and these notified tribes came to be known as ‘denotified’ tribes.

However, the story of the oppression of these tribal communities did not end with colonial power in India. The colonial law and approach to law continued. Criminal legislations across different States defines ‘habitual offender’ and statutory laws empowered the colonial State to notify certain these denotified tribes/wandering tribes as habitual offenders. For instance, Rule 404 of West Bengal Jail Manual assumes that a person from wandering tribe has natural tendency to escape and therefore cannot be appointed to be a night guard. Further, Rule 411 of Madhya Pradesh Prison Rules,1987 automatically classifies members of DNTs as habitual criminals, even without prior convictions, based on perceived habits like gang involvement or theft. The Andhra Pradesh, Odisha and Rajasthan Manuals label members of wandering or “criminal” tribes as dangerous, prone to escape, and prohibit their employment outside the prison. These provisions came under constitutional scrutiny in Sukanya Shantha.

Discrimination

While the classification of a person or classes of persons as habitual offender is an individualistic or offence-based categorisation, in case of denotified tribe it targets the entire tribe. The classification makes several assumptions based on nothing but the membership of an individual in the tribe. The Court held that this is contrary to Article 15(1) of the Constitution of India that prohibits the State from discriminating against an individual on basis of caste or place of birth, among other factors. [175] The Court further noted that the unjust labelling of denotified tribes as habitual criminals or individuals of bad character, based solely on stereotypes, perpetuates and reinforces discriminatory practices against them. [175].

Untouchability

Further, the Court rightly held the segregation and categorisation of denotified tribes with habitual offenders to be unconstitutional for violating prohibition of untouchability under Article 17 and the right to equality under Article 14 [182]. The Prison Manuals assume that members of criminal tribes have a tendency to escape or commit offences like theft. These prejudicial assumptions are made purely on basis of their identity and any person born into these tribes will automatically be assumed to be a criminal; giving rise to a form of untouchability [182-183]. Further, the Court applied the reasonable classification test to determine if caste or being a member of a tribe can be a ground to classify the prisoners. The Court rejected the existence of reasonable classification since there is no rational nexus between the classification and objective of security or reform.

Conclusion

The Supreme Court thus struck down the provisions and directed all the State governments to revise their prison manuals/rules in light of their judgement within three months. The order of the Court requires deletion of ‘caste’ column from the prisoner’s register [231(iv)]. The Central government was also asked to make necessary changes to the Model Prison Manual 2016 and Correctional Services Act 2023. Importantly, the court directed that denotified tribes must not be subjected to any arbitrary arrests.

It is surprising that it took several decades for the Supreme Court to take cognizance of this matter and declare these prejudicial and biased provisions as unconstitutional. However, to prevent any such practices the Supreme Court suo moto took cognizance of this case in In Re: Discrimination Inside Prisons in India [231] and asked the registry to list the matter three months from the date of the judgement.  While the decision of the Supreme Court goes on to declare caste discrimination in prison manuals/rules as unconstitutional, these practices might still take place without legal sanction, but with societal acquiescence. The judicial route to prohibit and end such practices is inefficient since it’s decision will either strike down a law that allows such practices or on a case-to-case basis prohibit such practices in specific prisons. A more effective solution will be an executive-level overhaul of prison rules along with compliance monitoring body functioning under the supervision of the judiciary will be required.