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New Delhi: Tribals are subject to oppression and cruelty even after independence and still picked up by the investigating officers to cover up shoddy investigations, Supreme Court Judge Justice D.Y. Chandrachud said on Monday.
Justice Chandrachud was speaking at the 13th B R Ambedkar Memorial Lecture on the topic of ‘Conceptualising Marginalisation: Agency, Assertion & Personhood’ by the Indian Institute of Dalit Studies, (IIDS) Delhi and Rosa Luxemburg Stiftung, South Asia.
The top court judge said even if a discriminatory law is held unconstitutional by the courts, or is repealed by parliament, the discriminatory behavioural pattern is not immediately overturned.
“Constitutional and legal mandates are not sufficient to protect the rights of the marginalised group including Dalit and tribals,” he said.
“The British Raj enacted the Criminal Tribes Act 1871 through which a tribe, gang, or class of persons addicted to the systemic commission of offences were notified. The Criminal Tribes Act was later repealed in 1949 once our Constitution was enacted, and the tribes were ‘de-notified’.”
“However, even after nearly seventy-three years since the tribes were de-notified, the members of the tribes are still subject to oppression and cruelty. Members of the de-notified tribes are still picked up by the investigating officers to cover up shoddy investigations,” Justice Chandrachud said.
Referring to a top court judgement, he said, “This Court in Ankush Maruti v. the State of Maharashtra allowed a review petition filed against the conviction of six accused persons on rape and murder charges.”
“The decision judicially recognised that the members of the nomadic tribes belonging to the lower strata of the society are regularly harassed by investigating agencies by using the forces of criminal law,” Justice Chandrachud said.
The apex court judge said that the Constitution mandates redistribution of material resources to further the constitutional ideal of substantive equality.
“However, we need to ask ourselves a very important question – would redistribution of material resources, automatically and by itself, extend respect to the members of the marginalized community? Formal equality requires recognising all persons as equals, and substantive equality aims at equitable outcomes.
“However, without the fulfilment of the principle of recognition, the ideals of both formal and substantive equality would not be sufficient to address concerns of freedom. It is only through recognition that our existence as social beings is generated,” he said.
Justice Chandrachud said humiliation is perpetuated by the institutions and the society.
“The members of the marginalised communities can also be institutionally humiliated not merely by using the tool of law but also by establishments that further a conducive environment for discrimination and humiliation to be perpetuated. Even if a discriminatory law is held unconstitutional by the Courts, or is repealed by the parliament, the discriminatory behavioural pattern is not immediately overturned,” he said.
Justice Chandrachud said that treating every person as an individual, irrespective of their differences and membership of multiple groups would not be sufficient to gain personhood (status of being a person).
“Hence, members of the marginalised communities would be able to gain complete personhood only by assertion and recognition of their group identities. The international framework and the Indian Constitution facilitate this approach, of identifying an individual as a member of the group to remedy marginalisation.”
“What I mean is that the only way for the members of the marginalised communities to achieve personhood is through social mobilisation as a collective against discrimination. Such mobilisation should not be considered as ‘politics of identity but as a necessary means for redressing historical discrimination,” he said.
Justice Chandrachud said he often wonders if ‘the people’ referred to in the preamble of the Constitution includes the tribes which were still recognised as ‘notified tribes’ when the constitution came into force.
“Does it include the homosexuals? Does it include women? The Dalit community, and the disabled?” he asked.
Justice Chandrachud said combating something as prevalent and deep-rooted as marginalisation is no easy task, and does not have solutions.
“The only recourse available to us is to faithfully abide by and give life to the constitutional ideals which Dr Ambedkar helped formulate, and use those to bring transformative change in the minds and perceptions of the society,” he said.