Continuing the Colonial Tradition of

Social Exclusion Through the

Penal Measures in India

B.B. Pande*

The
m The phenomenon marks its
presence both internationally and nationally in different periods of
time and social formations.! Equally vital are the forms and conse-
quential import of social exclusion that accords significance to varied
debates relating to absolute and relative social exclusion, direct and
indirect social exclusion, and real and imaginary social exclusion.
Furthermore, measures put to use for bringing about social exclusion
such as informal measures like t;
tion or the formal measures like administrative
law and schemes as-
m' igni All these render social exclusion a
complex and multi-faceted phenomenon. Presently I shall focus on
the colonial tradition of social exclusion through the penal laws.

1. RationaLE oF THE CoroNiaL SociaL Excrusion Poricy

The rationale of the colonial social exclusion policy can be gauged

from the attitudes and understanding of the “other” on the part of the
. Writing about the rationale of social
exclusion in the period of the transformation of the communal society
into industrial society, Ji makes the following
observation:

The transitional stage of industrialism, with its break-

down of communal and differential authority patterns, its
economic and residential separation of classes, its disjunc-
tion between people’s actnal behaviours and the new

* Former Professor of Law, University of Delhi, India.

1 Professor T.K. Oommen has eloquently adverted to the technique of social exclusion
deployed by the colonial regimes that had invented the identities such as “Savage other,”
“Black other,” and “Oriental other.” T.K. Oommen, Keynote Address at National Seminar
on Social Exclusion and Empowerment in India: A Multidisciplinary Approach, Center for
Interdisciplinary Studies, Burdwan University (2007).
2 J.A. Mayer, Notes Towards a Working Definition of Social Control in Historical Analysis,
in SociaL CONTROL AND THE StATE (Stanley Cohen & Andrew T. Skull eds., 1983).

125
126 Jindal Global Law Review [Vol. 1:125

behaviours needed for a modern industrial society led to a

es,.3 generalized
as a fear of the

The dominant sections resorting to a strict social control policy is

further explained by Mayer as follows:

In the nineteenth century historical situation, the

. They were sub-cultural

ethnic groups. As such
they had
Ry I o ro-
source, of course was simply their membership in an ethnic
culture, they possessed a systematic set of values, ways of
perceiving and group re-enforcement of their beliefs, atti-
tudes, norms and so on.*

Sir Leon Radzinowicz® identified a somewhat similar rationale

for.
and nglish society:

The recurrences of criminal behavior in a comparatively

narrow section of society, its concentration within certain de-
finable areas of the Metropolis, its prevalence among the
ve! rceived with a new intensity. The;

, loose or
improvident behavior of the lower order of the society, be-
came marked amongst all would be reformers. The same ill-
defined way, idleness, drunkenness or immorality came to be
regarded as immediate causes of crime and therefore in
themselves direct threat to social stability.®

rationalization, particularly the poorer and underpri on.

The reasons that sustained the colonial exclusion policy are: First, it

o, 1 wao e
ond, it was U T TSRO SUgporY T Gt
class’s ways of life and morality, and third, it served as a measure of -
3Id
4 Id. at 23.
5 2 Leon Ranzivowicz, A History oF ENcrisa CRivivaL Law 2-3 (1956).
61d.
2009] Social Exclusion Through Penal Measures 127

Though fear of the other, particularly the poor and the underprivi-
leged sections, is projected as the most important motivation of social
exclusion, the real, mostly hidden, motivation for impelling the domi-
nant sections remains to be greed or consideration of economic gain.
Thus, the dominant section found nothing wrong:in pauperizing, stig-
matizing, or criminalizing as long as it yielded economic gain to
them. For example in the early stage of plantation and industrial
capitalism in India in the late nineteenth and earlier twentieth cen-
tury social exclusion was practiced as a technique of ensuring a regu-
lar supply of cheap and pliant labor. Even laws such as the
Apprentice Act, 1850 were enacted to compel the children of the poor
and destitute parents to work as apprentices up to three years with-
out any payment. Who stood to gain by this device of ensuring regu-
lar supply of free apprentices labor? Obviously it was the European
capitalist industries that were constantly threatened by irregular
supply of labor force in these days.

II. Law as a MEans or SociaL ExcLusion

In modern societies law invariably remains to be a vital instru-

ment of social ordering. It is deployed both for social exclusion as well
as for social inclusion. The social inclusionary role of law is of recent
origin and is associated with the advent of the right conferring laws,
particularly of the post Second World War era. The right-oriented
laws are generally enabling in nature and egalitarian in character.
Unlike these, the duty-oriented laws are disabling in nature and ex-
clusionary in import. They cast universal duties or obligations and
make non-compliance socially stigmatizing. Even the social exclu-
sionary laws can assume either of the following two forms: (a) Those
that directly or expressly lead to social exclusion of certain groups or
individuals, and (b) Those that indirectly or incidentally lead to social
exclusion.
Traditionally understood, laws were meant to serve certain inter-
ests that concern mainly the elitist sections of the society only. That
perhaps was the reason for John Stuart Mill” and John Rawls® to
expressly exclude the destitute and other underprivileged in their
writings on liberty and justice. H.L.A. Hart® was more forthright in
expressly acknowledging this fact in the context of the discussion on
freedom thus:

7 Jomn Stuart M, ON Liserry (1859), reprinted in On Lieerty anp OTHER Essavs

(John Gray ed., 1991).
8 JoHN RawLs, A THEORY OF JUSTICE 543 (1971).
9 H.L.A. Hart, Are There
Any Natural Rights?, 64 PriL. Rev. 175-91 (1955).
128 Jindal Global Law Review [Vol. 1:125

Freedom (the absence of coercion) can be valueless to those

victims of unrestricted competition too poor to make use of
it; so it will be pedantic to point out to them that through
starving they are free. This is the truth exaggerated by the
Marxist whose identification of poverty with lack of freedom
confuses two different evils.*®

The legal system’s preoccupation with such an understanding of

freedom and liberty tends not only to turn it into an elitist institution
meant to serve the interests of only those who are capable, autono-
mous moral agents, but also leads to social exclusion of a bulk of the
poor and underprivileged population. Law confers rights and guaran-
tees freedoms, but the poor and underprivileged are not entitled to
them because they lack the essential qualifications for claiming them
— capabilities and autonomy. This traditional inbuilt social exclu-
sionary stance of the legal system has come under strong criticism
from those who espouse the proper viewpoint. Why should legal
rights and freedoms not be understood in a sense that would enable a
larger section of the population to take benefits through them? As a
consequence several legislative and judicial initiatives are seemingly
underway to offset the traditionally exclusionary stance of the legal
system.™!
More significant social exclusionary fall-out relates to the duty-
oriented or obligation-creating laws. Such laws require compliance
with certain behavioral standards or require abstinence with certain
forms of conduct. Though such laws are couched in neutral and uni-
versal terms, in effect it is the poor or underprivileged who are not in
a position to comply with the legal duties or obligations, thereby lead-
ing to incidental social exclusion through criminalization. Karl Marx
strongly critiqued the dominant class policy of criminalization of the
whole lot of the underclass population in fifteenth and sixteenth cen-
tury Europe thus:

[Tlhe right of human beings givels] way to that of young

trees. . . . By applying the category of the theft where it
ought not to be applied, you have exonerated it where this
category ought to be applied. . . . All the organs of the state
become ears, eyes, arms, legs, by means of which the interest

10 7d
11 B.B. Pande, Re-orienting the Rights Discourse to Basic Human Needs, in Humax Ricnrs
AND Basic NEEps 149 (M.P. Singh, Helmut Goerlich & Michael von Hauff eds., 2008).
2009] Social Exclusion Through Penal Measures 129

of the forest owner hears, observes, appraises, protects,

reaches out, and runs.'?

As he stated this, Marx also had to ask, which human beings?

For the first time he comes to the defence of the “poor, politically and
socially property-less,” when he demands for the poor a “customary
right.”*? .
The social exclusionary fallout of the duty-oriented laws for the
vast section of destitute and underprivileged population has been ap-
preciated by Barbara Harris-White in her incisive article in the con-
text of South Asian societies.’* She elaborately describes how the
economic aspect of destitution, which is labeled by her as “having
nothing,” the social aspect of destitution, which is labeled as “being
nothing,” and the political aspect of destitution, which is labeled as
“having no rights and being wrong” creates disenfranchisement and
social exclusion for the vast range of poor and powerless population.'®
Barbara Harris-White sees a direct State complicity in the culturally
legitimated oppressive practices that leads to social exclusion of the
wide range of population that may have had social powerlessness as a
common feature.*®
Equally significant were the techniques of expanding the net of
criminalization to a whole lot of new crimes like vagrancy, beggary,
squatting on public land, illegal hawking, unlicensed rickshaw-pull-
ing, etc. The rationale of these forms of criminality was summed up
by Lord Justice Scott in an early House of Lords judgment in Ledwith
v Roberts™” thus:

In my view these two expressions both refer to members

of a class once prevalent in England to an extent which made
it for four or five centuries a major political problem, a prob-
lem which taxed the forces of law and order to the uttermost
and produced a long succession of repetitive statutes. Those
laws were framed exclusively in relation to that particular
class of community and have three purposes. The class con-

12 Karl Marx, Debates on the Law on Thefts of Wood, Rheinische Zeitung, Oct. 25, 1842
supp., reprinted in 1 Karl Marx & Frederick Engels, Collected Works 224, 226, 228, 245
(Intl Publishers 1975).
13 Peter Linebaugh, The Theft of Wood and Working Class Composition, in CRIME AND
CaprraLism 80 (David Greenberg ed., 1981).
14 Barbara Harris White, Destitution and the Poverty of Its Politics: With Special Reference
to South Asia, 33 WorLp Dev. 881-91 (2005).
15 1d.
16 Id
17 [1937] 1 KB 232.
130 Jindal Global Law Review [Vol. 1:125

sisted of the hoards of unemployed persons, many of them

addicted to crime, then wandering over the face of the coun-
try; the purposes were: (a) settlement of the able bodied in
their own parish and provision of work for them there; (b)
relief for the aged and infirm, that is, those who could not
work; and (¢) punishment of those able bodied who would not
work.'®

III. SociaL Excrusionary PenaL Laws v Brrrisi INpia

The deployment of social exclusionary penal laws in India was

clearly associated with the earlier stages of plantation and industrial
capitalism in the nineteenth and the early twentieth century in In-
dia.’® Like many other colonial states in Africa and Latin America
diverse types of penal measures were devised mainly to control the
working classes and petty traders. Some of the known types of
criminalization measures were:
(a) Criminalizing breach of contracts by workers.
(b) Criminalizing indolent and parasitic ways of life by vagrancy
and anti-beggary laws.
(¢) Criminalizing workers combinations and other collective
ways of raising workers grievances.

A. The Crime of Breach of Contract

This was a device in the hands of the employers in tea, coffee,

and indigo plantations to compel workers to fulfill their work con-
tracts on payment of monetary advances. The earliest penal measure
was the Workman’s Breach of Contract Act, 1859, followed by the
Employer’s and Workmen’s (Disputes) Act, 1860 and Chapter XIX
(Sections 491-493) of the Indian Penal Code, 1860. In terms of the
aforesaid penal provisions most of the criminals processed through
the magistrate’s court, for the crime of breach of contracts were poor
and resourceless villagers who had been duped into work contracts by
the labor agents on payment of small sums of advance.?® Thus, the
fear of penal sanctions was used to compel large numbers of planta-
tion and factory workers to respect their work contracts, even where
the conditions of the work were most inhospitable and exploitative.

18 Id at 270.
19 See B.B. Pande, Controlling the Working Class Through Penal Measure in British India
(1858-1947), 10-11 DevLnt L. Rev. 39 (1981-82); see also Z.M.S. Siddiqi, Sanction for Breach
of Contract of Service (1843-1925), 25 J. INDIaN L. INsT. (1983).
20 See Govinda Chetty v. Munonooy Naik, 14 Cr. L.J. 400 (1913) (the advance amount was
rupees one hundred); see also C.J. Lucas v. Ramai Singh, 15 Cr. L.J. 233 (AlL) (1914) (the
advance amount was barely rupees nineteen only).
2009] Social Exclusion Through Penal Measures 131

B. The Crime of Vagrancy and Beggary

Though the Municipal Act, the Police Act and the preventive
measures under the Code of Criminal Procedure, 1898 had measures
which could be pressed into action to regulate parasitic and indolent
ways of life, the real anti-vagrancy and beggary laws came to be en-
acted post World War II, which was the labor recession period in the
early 1940s. As a consequence, most of the provincial governments
enacted Beggary Prevention Acts that made soliciting alms in public
places an offence.?* A crime of beggary could entail detention in a
poor house for up to three years for the first offence and up to seven
years for repeat offence. The anti-beggary laws carried a subtle mes-
sage of requiring every able bodied and even disabled person to follow
an industrious way of life and accept wages labor on any terms.

C. The Crimes of Collective Action of Workers

In the early twentieth century the tendency of workers to raise

grievances collectively was for the first time perceived as a form of
behavior that had the potential of seriously harming the employer’s
interest. As a sequel the administration criminalized the combina-
tions by enacting new crimes of criminal conspiracy and with the
emergence of trade unions certain forms of collective action of labor
were legitimized.

IV. Conrtmuity oF SociaL ExcLUSIONARY Law

v THE Post Coroniar Era

In the post-colonial era social exclusionary laws were rational-

ized in view-of the Trade Union Movement and labour regulation
through non-penal measures. As a sequel, crimes of breach of con-
tract and combination of workers were repealed. However, even in
the post colonial period, penal measures relating to vagrancy and
beggary were not only retained in the statute book, but enforced re-
pressively. Since the various beggary preventions acts, including the
Bombay Preventions of Begging Act, 1959 (extended to the Union
Territory of Delhi in 1961) defines begging offences fairly widely
under Section 2(1)(c) and 2(1)(d), it confers unduly wide discretionary
powers on the police that constitute the core of the enforcement au-
thorities. Such wide powers enable the enforcement agencies to inter-
fere with the lifestyles of many innocent self-employed populations.
Arbitrary arrest and detention in Poor House Reception Centre is fol-

21 See B.B. Pande, The Adnunistration of Beggary Prevention Laws in India — A Legal Aid
View Point, 11 Int'L J. Soc. L. 291, 291-304 (1983).
132 Jindal Global Law Review [Vol. 1:125

lowed by trial, which mostly remains far from fair. As a consequence

in most of the metro towns, the underprivileged population continues
to be under a constant threat of action under the beggary law.
Since a substantial proportion of India’s urban work force is com-
pelled to earn its livelihood through work in the informal sector, such
as street vendors, hawkers, and rickshaw pullers, the independent
Indian state continues to develop new and unique measures of social
exclusion. Street vending, hawking, and rickshaw pulling require
compliance with regulatory measures under the Municipal Corpora-
tions Acts and the Police Acts, and these along with the regulatory
orders issued by the municipal authorities become crucial for the so-
cial exclusionary consequences. According to Madhu Kishwar, in
Delhi alone of the estimated five lakh street vendors and hawkers,
only 4916 tehbazari rights have been created, thus rendering the
overwhelming majority of vendors and hawkers illegal.?? Such illegal
vendors and hawkers perpetually remain at the mercy of the enforce-
ment authorities, apart from their social exclusion from lawful trader
status. Similarly, the municipal authorities control the cycle rick-
shaw trade, including the means of earning livelihood. Dethi had an
estimated number of six lakh rickshaws, but the municipal authori-
ties at no time issue more than 90,000 licenses. This leaves over five
lakh rickshaw pullers in the status of illegal pliers, whose rickshaws
can be confiscated at will by the enforcement authorities.?® Thus, the
large population of illegal traders, hawkers, and rickshaw pullers are
systematically subject to social exclusion apart front being subju-
gated to constant economic exploitation. :

V. THe NEED TO CHANGE THE PoLICY OF CRIMINALIZATION

oF THE POOR AND MARGINALIZED

As discussed earlier, in Europe and England throughout the six-

teenth to eighteenth century period, the poor, the marginalized, and
the migrants were indiscriminately criminalized and invariably
treated as suspects.2* The reasons underlying such an approach were
diverse, such as: (a) the poor were. perceived as inferior or sub-
human, (b) the way of life of the poor was considered an anti-thesis to
civilized way of life, (c) the poor needed to be disciplined and educated

22 Reporting on these incidents is available in articles by Madhu Kishwar in volumes 124

through 126 and 135 of MaNusta (2001, 2003).
23 Madhu Kishwar, Denial of Constitutional Equality, Government’s War on Cycle Rick-
shaw Puller, 134 ManusHI 4, 4-13 (2003).
24 See generally PeTer LiNesavcH, THE Lonpon HanGED: CRIME AND CIVIL SOCIETY IN THE
EigareenT CENTURY (1991); LEON RADZINOWICZ, IDEOLOGY AND CRIME (1966); E.P. THOMP-
soN, Waics anp Hunrers: THE ORIGIN oF THE Brack Act (1975).
2009] Social Exclusion Through Penal Measures 133

in order to be converted into a resource for the larger society, and (d)
the overwhelmingly large numbers of the poor, as against the well off
and elite sections, constituted a threat to the material interest, par-
ticularly the private property of the dominant classes. These things
were no different in India, either. With rampant deployment of coer-
cive control techniques and creation of a plethora of status offences,
coupled with differential application of criminal laws, the inherent
bias of the criminal justice system against the poor became much too
obvious. It is sad, but not surprising, that the policy of criminaliza-
tion of the poor remains more or less uncontested even after five de-
cades of independence.?’ Much worse is that factors like population
explosion, accelerated rate of rural-urban migration, globalization,
and increased faith in coercive regulation of the poor are contributing
to the proliferation in the explicit and implicit ways of social exclu-
sion of the poor and marginalized.
However, there are some positive developments, too, that raise
the hopes about the likely policy changes. The three notable develop-
ments in this regard are: First, conferment, after the creation of In-
dian Republic in 1950, of the constitutionally guaranteed rights to
equality, liberty, and dignity to all the citizens, including the poor
and marginalized, and the emergence of the conventional and statu-
tory human rights regime that concerns them as well.?® Secondly,
there is an increased emphasis on reform and rehabilitation ideals.
Thirdly, the focus is shifting to the procedural determining line that
identifies formal stigmatization itself as a major cause for the crimi-
nality of the poor. These developments may, it is hoped, trigger
changes in the policy, both at the legislative as well as at the enforce-
ment levels. The constitutional imperative of equality, liberty, and
dignity is already reflected in the enactment of the laws meant to
protect the weaker sections such as the Protection of Civil Rights Act,
1955, The Bonded Labour System (Abolition) Act, 1976, The Sched-
uled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989,
and some of the judicial decisions that envisage to compensate the

25 That is the reason why the punitive approach taken to beggars and vagrants in the post-
Second World War period that was associated with economic recession and massive re-
trenchment continues to hold the sway even today, and many states have either enacted or
extended these laws in the sixties and seventies to cope with the “menace” of begging.
26 It is significant that most of the modern textbooks on criminal law in England treat the
Constitutional Principles and Human Right Conventions as the basis or source of their
criminal policy, but it is curious that still criminologists in India pay little heed to the
constitutional or human rights guarantees in the course of criminal justice policy
discourses.
184 Jindal Global Law Review [Vol. 1:125

poor victims against the abuse process.?” But one can hardly say that
the constitutional guarantees have already made a decisive impact
on the criminalization policy, particularly relating to the poor.
In criminological theory, particularly in the line of consensus tra-
dition, no distinction is made between crimes by the rich and the
poor. The economic or social status of the lawbreakers is not to be
taken into account at the time of either laying down the norms or its
uniform enforcement; at least as an ideal. This is because all crimes
deserve punishment commensurate with their seriousness. But crim-
inal policy is not concerned with retribution and deterrence alone.
The ideal of reform demands understanding the offender, and this is
necessary because although people choose to act criminally, they
hardly do so under the conditions of their own choosing. They might
be compelled by the material conditions of poverty, alienation, etec.
and do not remain fit subjects for a faithful compliance with criminal
law norms. An anecdote from Lord Buddha’s life may be very perti-
nent here. Lord Buddha after exposing his chosen three disciplines to
advance discourses on nirvana and renunciation asked them: “What
would be the nature of your response if you happen to confront a sick,
‘tired, haggard, and emaciated person on the roadside, soon after you
embark on your journey of spreading the message of Buddhism?” The
response of all the learned disciples was more or less on the same
lines: “We will tell him about the futility of human existence and
about the path of nirvana that lies ahead after true renunciation”
Buddha was thoroughly disappointed and exclaimed: “You have not
understood my message at all. Because you must first nurse the per-
son back to health by feeding him, resting him, treating him and then
only subject him to the message of nirvana.”
Is subjecting the poor and marginalized to criminalization indis-
criminately not like subjecting the sick and hungry to the discourse
on nirvana? The standards of right conduct, morality, decency, and
hygiene conveyed through c¢riminal law norms are likely to be better
complied with by people who are in a position to enjoy minimum ma-
terial conditions. Therefore, the criminal law norm as well as its en-
forcement needs to be rationalized in the light of the material
conditions of a substantial majority who are everyday arrested, pros-
ecuted, tried, sentenced, and imprisoned more for their poverty
rather than their “deviations.”
Finally, most of the criminality of the poor and marginalized is
merely an ascribed status. Since the self of the poor is socially lo-
cated, her or his contact with the systems of social control can in fact

27 See Shakila Abdul Gaffar Khan v. Vasant Raghunath Dhoble, (2003) 7 S.C.C. 749; Ni-
labati Behra v. State of Orissa, (1993) 2 S.C.C. 746; Khatri (V) v. State of Bihar, (1983) 2
S.C.C. 266.
2009] Social Exclusion Through Penal Measures 135

have a negative effect on the rule breaker’s self image. In a colonial

society labeling those who breached service contracts, who led a life of
idleness and social parasitism, and who indulged in trade that was
designated as pretence for begging may have been tolerated because
the ruling class was merely interested in keeping the native popula-
tion under control.-But in a free and democratic society, if some peo-
ple are labeled as criminal merely because of their existential
conditions then the enforcement officials are getting a decisive say in
creating and perpetuating criminality of the poor and the marginal-
ized. Not only the beggar and the vagrant but also the vendor, the
hawker, and the rickshaw-puller may constantly live under the per-
petual fear of being labeled as criminal and being subjected to formal
action. In a democratic order such disproportionate power in the
hands of the enforcement officials is hardly tenable, much less
defensible.