How do habitual offender laws discriminate? Explained

The story so far:

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.

What has the SC said about the matter in the past?

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 States like Haryana have already repealed it.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.

What is the origin of the ‘habitual offender’ classification?

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.

However, even though the CTA Enquiry Report had led to the reframing of habitual offender laws, by centering individuals over communities, more than a decade later, when the Lokur Committee in 1965 was looking at denotified tribes, it saw them as communities with an “anti-social heritage”. Some specific communities were even described as having an “affinity for crime”.

What were some of the crimes which made one a ‘habitual offender’?

Habitual offender laws have a schedule of crimes for which the classification could be invoked. Across States, this included crimes like “being a thug”, “belonging to a gang of dacoits”, “living on the earnings of prostitution”, and half-a-dozen entries on “lurking”.

Registers were maintained, and rules and regulations were formulated by States on how ‘habitual offenders’ were to be treated within prisons, leading to jail manuals across the country adopting the language of “habitual offenders”, with some of them explicitly allowing for erstwhile “criminal tribe” community members to be designated as “habitual offenders” (for example in Rajasthan). But in 1998, the custodial death of Budhan Sabar, a member of a denotified community in West Bengal, led to national outrage over the concept of “habitual offenders” and how it was being used by the police.

When did change start?

From the outrage over Mr. Sabar’s death, an advocacy group was formed known as the Denotified and Nomadic Tribes Rights Action Group (DNT-RAG) by writers Mahasweta Devi and G.N. Devy, who also spearheaded the launching of a magazine named after Budhan, which wrote on issues faced by these communities. The DNT-RAG studied the conditions of denotified tribes and prepared a report.

In 1998, the DNT-RAG wrote to the National Human Rights Commission (NHRC) in India and the United Nations Secretary General, noting that even though the CTA had been repealed, “the police as well as the general public continue to treat most of these unfortunate communities as ‘born criminals’ and ‘habitual criminals’”, citing the habitual offender law in Bombay. “Every day brings in instances of mob-lynching, arson, and police atrocities enacted upon the innocent and helpless DNTs,” the letter said.

Reacting to this letter, the NHRC formed an Advisory Group which in 2000, concluded that these “habitual offender” laws can be repealed. Since then, every National Commission that has dealt with the issue of DNT, NT, SNT communities has mentioned the adverse effect of “habitual offender” laws on these communities.

In March 2007, the United Nations Committee on the Elimination of Racial Discrimination noted the way “habitual offender” laws were being applied and called for its repeal. In 2008, the National Commission on DNT, SNT, NT headed by B.S. Renke noted the negative effect of the laws on the lives of these communities.

In 2014, the High-Level Committee of the Tribal Affairs Ministry, headed by Professor Virginius Xaxa noted, “The tag of criminality attached to DNTs and to the nomadic way of life of nomadic tribes persists to the present day. The explanation lies, in good measure, in the Criminal Tribes Act being replaced in many States by the Habitual Offenders Act.” In 2020, journalist Sukanya Santha reported on widespread caste-discrimination within Indian prison systems, including the treatment meted out to those who have been classified as “habitual offenders”, based on which she filed a petition in the Supreme Court.

How have States reacted?

Deciding this case in October 2024, a Bench headed by then-Chief Justice D.Y. Chandrachud had noted that while “habitual offender” laws were not the subject of the matter specifically, it felt compelled to make some observations.

It said, “The ‘habitual offender’ legislations were enacted to replace the Criminal Tribes Act. However, in States such as Rajasthan, they were used to refer to members belonging to criminal tribes/denotified tribes. Applying that logic, several Prison Manuals/Rules have also referred to ‘habitual offender’ to mean members of Denotified Tribes or wandering tribes….This cannot be accepted. A whole community ought not to have either been declared a criminal tribe in the past or a habitual offender in the present. It would not be wrong to say that the classification of ‘habitual offender’ has been used to target members of Denotified Tribes.”

Further down in the judgment, the Supreme Court went on to “urge” the State governments to review whether there remained any need for such “habitual offender” laws in the country.

According to the latest information provided by the States and UTs to the Ministry of Home Affairs, Punjab has said that it has not implemented the law for over five years and neither had any register been maintained in this time. Similarly, the Odisha government has said that no case had been registered under the law in the last five years and Andhra Pradesh has said that no one in their jails currently was imprisoned under the law.

Some States like Goa have argued that since there are no DNTs in their State, there is no scope of the law being misused to target them and have indicated that they may be allowed to continue using them. Gujarat has opined against repealing it saying it “does not intend” to harass. Telangana has called the law preventative, whereas Uttar Pradesh has said that since all “habitual offender” provisions had been covered under their Goondas Act, it does not matter if it is repealed.

According to the latest available records of the National Crime Records Bureau (for 2022), about 1.9% of India’s 1.29 lakh convict population have been classified as “habitual offenders”, with the highest proportion seen in Delhi, where 21.5% of convicts are classified as such.