Colonial and casteist ideas still shape criminalisation and policing in India 

In 2019, a young man in Bhopal belonging to the Pardhi community – a semi-nomadic group with livelihoods linked to forest produce – was ordered by the local district magistrate “to remove himself” from six districts in the Indian state of Madhya Pradesh for a period of six months. The externment order was passed under the Madhya Pradesh Rajyasuraksha Adhiniyam, or State Security Act, of 1990 on the basis of a report submitted by the police. The police had initiated proceedings against the man at their own discretion and deemed him a Habitual Offender. The evidence they presented to the magistrate included cases in which he had already been acquitted, some that were still pending in court, and charges he had faces as a minor – which, according to the principle of a fresh start enshrined in the Juvenile Justice Act, 2015, cannot be included as part of an individual’s criminal record as an adult. All the offences he had been charged with were petty in nature. Despite the lack of a conviction in any case, the man was still externed from the six districts.

Across India, everyday policing is largely about pursuing petty offences. This approach follows a theory known as “broken-windows policing”, which holds that the prevention of serious crimes is contingent upon the maintenance of order by policing low-level offences. There is little evidence to suggest that broken-windows policing deters serious crime. However, this approach to policing has a long history of both colonial and casteist law enforcement behind it, and it very often targets vulnerable communities that belong to the oppressed castes or are considered to be outside of the traditional caste hierarchy. 

Brahminism, with the practice of casteism at its core as propounded by texts like the Manusmriti, contains the origins of the present approach to carcerality in India. At the same time, caste is rarely mentioned in the discourse on carcerality as it is practised through policing, leading to distortions in the understanding of India’s criminal-law regimes and making it seem as though they operate in a casteless void. Laws like the Criminal Tribes Act (CTA) of 1871 were the result of a combination of racist European anthropology and the Indian caste system, portraying criminality as a hereditary characteristic.

Mythology attributes the origin of the Manusmriti to Brahma, the god of creation, who passed it on to the first human, Manu. The Manusmriti was long considered the foremost dharma-shastra, or book of laws, overshadowing all other mythological tenets. The text begins with the origin of the world and the origin of the four human communities, or varnas, according to Hinduism. It contains laws for these four communities, arranged in a strict hierarchy, and also norms for managing disputes and transgressions. The Manusmriti ends by pontificating on two great conclusions about human life: that people obtain the fruits of this life’s actions in their next birth, and that the goal of each soul is liberating oneself from the cycle of birth and death. As Disha Wadekar has written, the “Manusmriti refers to ‘Non-Aryans’ and ‘excluded-Aryans’, who dwell ‘outside the village’, ‘on burial grounds, mountains and in groves’, wearing ‘garments of the dead’, and wandering ‘from place to place’ as criminal communities. It is clear that the reference is to Avarna communities like Dalits, Adivasis and nomadic and wandering tribes.”

It is these communities who take up occupations such as fishing, carpentry, drumplaying and hunting, all considered to be impure. Hindu religious texts broadly classify castes as pure and impure on the basis of occupation, and ascribe each group an inherent honesty or dishonesty accordingly.

As anti-caste scholars have noted, the warped logic of Manu’s law runs through the construction of carcerality in modern-day India. This is evident in everything from the CTA, formulated under British colonial rule and since then repealed, to the habitual-offender regime, formulated by the states of Rajasthan, Punjab and Bombay in the late 1940s, and present in everyday policing even now. The Pardhis, for instance, have been denotified as a criminal tribe, but members of the community, like the young man in Bhopal, are still policed as potential criminals. Carcerality in India is widely predicated on the creation of group criminality by the colonial and Brahminical endeavours. Policing in India has a Brahminical nature in that it is situated within a violent ideology that positions Brahmins as the epitome of purity in the hierarchy of caste, and in how it includes tenets of eugenics propounded under colonialism. The Brahminical origins of Indian policing, which reaches well beyond ostensibly public spaces and deep into the everyday lives of marginalised communities, merit greater attention.

Caste and the colonial order

The notion of the hereditary criminal entered 18th- and 19th-century European criminology through pseudo-scientific notions of criminality as an innate, heritable biological trait. For instance, the 1870s saw the popularisation of the theories of the Italian criminologist Cesare Lombroso, who postulated that criminality was innate and could be identified in an individual by physical attributes such as a lopsided skull or a scanty beard. Individualised biological theories of criminality were then replaced with sociological explanations contingent upon the living conditions of people. For example, in France, those living on the margins of society were deemed to be “dangerous classes”, used interchangeably with “criminal classes”. The French referred to such groups as nomads, barbarians, savages, and so on. As Bhangya Bhukya, Meena Radhakrishna and others have argued, the “wandering nature” of a community could in itself be considered proof of its criminality. Those making the case for the “dangerousness” of a community would emphasise that the group does not lead a settled life or is always on the move for trade. Wandering or itinerant communities were central in the conceptualisation of “criminal classes”.

In India, avarna nomadic and semi-nomadic communities, falling outside the caste system, were considered “itinerant” or “deviant” by the colonial state since their unregulated livelihoods challenged Brahminical notions of fixed occupations within the caste order. Criminological theories around vagrancy in Britain at the time described itinerancy as the ethos of crime. The British therefore decided to control people who were nomadic or vagrant through forcefully settling them. For the colonial powers in India, the easiest way to differentiate among groups was to adopt the caste system, which tied identity to concrete, fixed occupations and common ritual practices. Imbibing the logic of the Manusmriti, colonial rulers saw criminality as being inherently encoded in tribes, and all avarnas, outside of the caste system. They applied Victorian notions of criminality and criminal classes to those lowest in the caste hierarchy and those outside it. In this way, colonialism expanded the idea of biological determinism to assign criminality to entire groups, and the caste system enabled the branding of entire communities as born criminals.

The colonial preoccupation with the “criminal” or “dangerous” classes is also seen in the creation of the legal category of the “mob”, predicated on the notion that there were certain groups within British society whose existence posed a threat to the social order. The same preoccupation led to an employee of the East India Company claiming, in 1830, to have discovered a cult of highway robbers who strangled their victims with silk scarves. He named them thugs and termed the associated phenomenon “thuggee”, derived from the Hindustani word thagna, which means to deceive. This eventually led to the Thugee and Dacoity Suppression Acts, which marked the origin of group criminality in India and paved the way for the formulation of the CTA some decades later.

The CTA codified nomadic and semi-nomadic communities as hereditary criminals “addicted to the systematic commission of bailable offences.” While the first part of the CTA criminalised tribes, part two criminalised transgender communities, particularly hijras, and branded them as sexual deviants.

Policing was central to the project of settling itinerant communities. The CTA allowed the creation of settlements to confine these communities and allowed village headmen, who were mostly landlords from the dominant castes, to restrict and monitor their everyday movements. It was in the interest of the landlords to have itinerant communities notified as criminals, since after settlement they could form a consistent workforce for them. In the Madras Presidency, the British sought to generate revenue by converting wastelands into cultivated land. This involved creating settlements under the CTA and using criminalised communities as indentured agricultural labour supervised by dominant-caste landlords. The colonial desire for revenue and the control of resources also led to the categorisation and criminalisation of certain livelihoods such as alcohol production as an “alien vice”. Policing with and for landlords played a significant role in the colonial endeavour of exercising economic control.

Control, coercion and surveillance

The colonial government pursued two intertwined goals: establishing “law and order” in Indian society and appropriating the basis of this “order” to the benefit of colonial power. This led to policing through village headmen or“respectable members of the community,” according to the Indian Police Commission report of 1902, constituted by the colonial government to recommend police reform. These “respectable members” were invariably landed individuals of the dominant castes.

Under the CTA, village headmen had extraordinary powers. They could not only recommend the initial notification of “criminal” groups but were also involved in the surveillance of those notified. The above-mentioned Police Commission report abolished village beats or patrols and handed policing powers over to village headmen. This system of policing continued until the movement for independence from colonial rule.

Entire families were branded as criminals under the act, leading to the creation of hereditary criminal tribes. Men who were either charged or convicted with an offence were forced to live in settlements created under the CTA, accompanied by women of their families who had no criminal record. Children were separated from such families.

The evolution of a pan-India police force in the 1930s emanated from the colonial desire to free soldiers from police duties. The work of several historians, including David Arnold, shows that, as with the Irish model of policing, the British created the Indian colonial police as a reserve force to quash disturbances during emergencies, thereby prioritising “order” over “law”. Through the police, the colonial government defined what “order” connoted, and it allowed police forces discretionary powers to secure such order. The colonial police channelled their meagre resources into policing the broad rural population through extensive surveillance. To maintain the appearance of order, the colonial police tagged specific communities as being criminal, thereby portraying them as the “proper objects of policing” on account of their socio-economic vulnerability. This strategy was based on the widely held view among the ruling castes about the supposed deviance of these communities due to their “otherness”. This approach continued in independent India under the Habitual Offender regime, which was contingent on police discretion but targeted the same communities.

The production of data is central to the exercise of surveillance. Casteist colonial datafication was formalised with the creation of the thagi and dakaiti departments – organs of the British Indian administration in the areas it controlled. These departments employed casteist methods of determining who thugs and dacoits were, based on the itinerancy of certain groups. As Mark Brown argues, in such departments, the “compilation of ‘intelligence’ on the nature, characteristics and manners of speech or ‘signs’ that thugs might use to identify each other and communicate in secrecy became a priority.” As such knowledge and data production became a priority for the administration, the departments claimed discovery of ever more thug groups, expanded this category and surveilled more communities tagged as criminals. In fact, the departments expanded the category until even upper castes were drawn into its ambit such as the Panda Brahmins of Cuttack.

Scholars who have studied the policing of crime under the British Raj have found that data production enabled these departments to categorise as thugs several nomadic communities such as the Pindaris, who were horsemen; the Badhaks, who were bird catchers; and the Nats and Bazeegurs, who worked as acrobats. This, in turn, led to the administration maintaining criminal dossiers under the CTA. Relying on the provisions of the CTA, village police officials conducted regular roll-calls for members of notified communities and surveilled their activities and movements, all on the pretext of preventing and deterring crime. The act institutionalised the police’s practice of blanket surveillance and maintaining detailed registers of notified communities to document their “criminal habits” and antecedents. Policing through surveillance and datafication is a crucial part of this disciplining and maintenance of order, particularly caste order. The police invented, documented, institutionalised and sanctified the criminality of nomadic and marginalised-caste communities through the CTA.

Guilty until proven innocent

The CTA was repealed in 1952, following Indian independence, on the understanding that its provisions would be replaced with others for the policing of a nebulous category of “habitual offenders”. The legacy of the CTA has endured through the policing of such offenders. The hereditary criminal of the past was placed in the new administrative category of the habitual offender, which remains ill-defined and therefore gives the police vast discretionary powers. 

Police stations across India maintain registers of habitual offenders or “history-sheeters” in their jurisdictions, with extensive details of their lives and daily movements. Registers record demographic details such as places of residence and caste, and personal information such as age and identifying marks. They also record “evidence” of criminality: details of habits, methods of committing crimes, property held, associates and places frequented. Several states have enacted legislation and executive regulations – most notably, the Habitual Offenders Acts – to preserve the institutionalised practice of surveillance of entire communities.

Police officers maintain and sign habitual-offender registers to attest that they have personally trailed or surveilled each so-called offender at least once every fortnight to investigate whether the person had, despite extensive surveillance, managed to commit theft or burglary. State police regulations allow them to maintain records of habitual offenders, but there are no restrictions on the information that may be gathered and, therefore, no form of accountability.

Like in the case of the  man from the Pardhi community externed in Bhopal, designation as a habitual offender is not contingent upon conviction by a criminal court. Even those acquitted of an offence or those merely suspected of but never charged with a criminal offence can be classified as habitual offenders. This is a reversal of the cardinal legal principle that a person is presumed innocent until proven guilty. Such discretionary latitude was symptomatic of colonial policing, which held that the habitual offender or “likely habitual” could not be identified by offence alone, but rather by reference to “character, history and antecedents.” Data on targeted communities thus led to the reification of caste hierarchies through policing. This disciplining through data-driven surveillance is now made more insidious by the use of digital technology.

In present-day policing, casteism is insidiously encoded in narratives making criminality synonymous with poverty, substance-addiction and compulsive “bad behaviour”. Criminality is characterised as such by a host of laws that criminalise the livelihoods and other aspects of the everyday lives of oppressed-caste communities. Offences defined under excise, gambling and forest-conservation laws, for instance, are predominantly deemed to be petty – that is, not requiring mandatory arrest and punishable by less than seven years in prison. These petty offences are central to the creation of the “habitual offender” category, driven by discretionary police powers. This approach is reminiscent of colonial narratives describing marginalised castes as “dangerous” and “suspected offenders” based on their lack of sufficient livelihood or susceptibility to drunkenness. The terms “history-sheeters”, “known depredators”, “rowdy” and “bad characters” are used in laws to be synonymous with the term “habitual offender”. This post-colonial language suggests an “addiction to crime” in targeted individuals and groups, reinforcing the presumption of guilt before innocence.

Petty policing

Under habitual-offender laws and provisions, the initiation of proceedings against a suspected offender is left to the police’s discretion and is often tied to them deeming the individual a habitual offender. Under this regime, district magistrates routinely pass orders against “the movements or acts of any person [that] are causing or calculated to cause alarm, danger or harm to person or property”. They can also act “when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property”. In this way, a web of colonial and post-colonial criminal laws mediates the freedom and rights of denotified tribes and other oppressed-caste communities.

The Criminal Justice and Police Accountability Project (CPA Project) produced a report about policing during the Covid-19 pandemic. Through analysis of First-Information Reports and arrest data of the Madhya Pradesh police during the lockdown between March 2020 and May 2020, CPA Project found that around 80 percent of arrests made were for low-level offences such as gambling and excise crimes, both punishable by jail time of less than seven years. Further, many arrests were made primarily over the production of small quantities of mahua or other liquors by various tribal communities. Within the ambit of low-level crimes, the most common offences arose out of small disputes booked under Sections 294 (obscene words), 323 (voluntarily causing hurt) and 506 (criminal intimidation) of the Indian Penal Code. By charging people with offences of obscenity, simple hurt and criminal intimidation, the police unnecessarily escalate small conflicts under the pretext of maintaining order. The persons arrested in these cases could have been let off with a notice issued under Section 41-A of the Code of Criminal Procedure in accordance with the Supreme Court of India’s observation in Arnesh Kumar, which states that casual or unnecessary arrests cannot be made by the police. Close to 25 percent of the people arrested were Muslims, who account for just 6.57 percent of the Madhya Pradesh population. Individuals belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes accounted for more than 72 percent of arrests.

The CPA Project produced further research on the Madhya Pradesh Excise Act of 1915 that regulates the manufacture and sale of alcohol, and demonstrated that offences under the act form a bulk of the policing of petty offences. Excise laws in India derive their origins from both the state’s monopoly over liquor production and the Brahminical notion of temperance. Ninety-two percent of First Information Reports and police complaints during the lockdown between March and May 2020 concerned the manufacture, sale or consumption of indigenous liquor called mahua on a non-commercial scale, that is, up to just 10 litres. Seventy-three percent of the FIRs filed related to the sale or consumption of mahua liquor in grocery stores and non-commercial public spaces, such as parks and temples, situated around or in marginalised-community neighbourhoods. Thus, the living spaces of marginalised communities were identified as sites of criminality and subjected to policing in a concerted manner.

The stringent policing of the production and sale of mahua liquor suggests the imposition of the Brahminical way of life on marginalised Adivasi communities and De-notified Tribes. The Excise Act is also responsible for the creation of the category of the “criminal woman”. For example, many women of the Kuchbandiya community in Madhya Pradesh, another Denotified Tribe, are engaged in making mahua. They have been branded as linchpins of the liquor mafia in the state and thus criminalised on the basis of their occupation. Women from oppressed castes are seen within the Brahminical framework as being promiscuous or as devoid of honour, and therefore not upholding feminine ideals of respectability. In criminalising these women, the policing system has relied on these Brahminical tropes. Charges under laws like the Excise Act call for actions detailed in the Code of Criminal Procedure that draw on “evidence of general repute” and pejoratively categorise people suspected of “bad livelihood” or held to possess the even more nebulous attribute of “dangerousness.” Such persons can be asked to furnish such things as land-title documents as security for good behaviour.

Carcerality as a way of life

Carcerality is a way of life for criminalised communities oppressed through everyday Brahminical policing. The mainstream discourse in India about crime and criminality, dominated by upper-caste voices, has obfuscated the Brahminical origins of criminalisation systems while linking carcerality with incarceration alone. This leads to a faulty understanding that the only consequence of an individual being criminalised is incarceration. In reality, many members of oppressed-caste communities face carcerality as lived everyday reality, enforced well beyond the physical space of prisons. Carcerality mediates communities’ access to public spaces and the wider world. Many people from oppressed groups fear visiting local markets or choose to stay indoors after certain hours because they know they are being watched and worry that the police will pick them up from the streets. This phenomenon was once summarised by a police officer in Hyderabad who, while describing the use of technology for policing, said that being a habitual offender is akin to “living in our custody all the time.”

In the United States of America, Black communities disproportionately affected by policing and incarceration have developed an abolitionist movement against the prison-industrial complex – a term used to describe “the overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to economic, social and political problems.” As abolitionists like Ruth Wilson Gilmore have argued, the movement has a political vision with the goal of ending the mass incarceration, policing and surveillance of Black and other minority communities in the country and creating lasting alternatives to carceral institutions. The idea is not to reform the police and other carceral institutions by making them more humane. As the Black abolitionist feminist Angela Davis says, we must think beyond  “prisonlike substitutes for the prison”. In an abolitionist framework, the dismantling of carceral structures is not confined to just closing prisons; it also requires creating vital systems of social support that many oppressed communities lack.

The majority of prisoners across India are from oppressed-caste communities. According to the National Crime Records Bureau’s 2022 statistics, 21 percent of undertrials belong to the Scheduled Castes, nine percent to the Scheduled Tribes and 35 percent to the Other Backward Classes. SC and ST groups constitute 17 percent and 9 percent respectively of the Indian population. The proportion of the OBC category, which comprises various groups and tribes like Dalit Muslims, Dalit Christians and Denotified Tribes, is currently unknown for lack of a caste census. These statistics need to be contextualised in the light of the Brahminical origin of the country’s policing and prisons – a reality that has been invisibilised in mainstream discourse. The need to trace the legal and carceral legacy of Manu's law in contemporary times is underscored by the existence of the statue of Manu outside the Rajasthan High Court, the indifference of the Supreme Court when approached for its removal and the reliance by the courts on the Manusmriti to determine “the role of women” in society even while deciding cases of sexual violence. 

This identification of Brahminical sources of legal and carceral power is essential to challenging the structural criminalisation of oppressed communities and the obfuscation of the systematic caste violence imbued in carceral structures. Simultaneously, building life-affirming institutions is at the heart of any abolitionist praxis. In the Indian context, any challenge to carceral structures or any vision for an abolitionist framework must be grounded in the history of anti-caste struggles – particularly in Ambedkarite, Adivasi and tribal demands for the redistribution of land to Dalits and other marginalised communities and these groups’ assertion of ownership over the commons through constitutional rights.

An anti-caste abolitionist framework is encapsulated in the anti-caste poet-saint Raidas’ vision of the sorrowless city of Begumpura: 

Correction: In an earlier version of this piece, the passages quoted from Disha Wadekar and Mark Brown appeared without due citation. This has been corrected. Himal Southasian regrets the errors. The text has also been amended with additional hyperlinks and citations for greater clarity.