The brunt of an undeclared war between the Maoists and the government has been unjustly borne by the Adivasis living in the Left Wing Extremism (LWE) designated districts of South Chhattisgarh. Many activists and lawyers have written extensively on how Adivasis are subjected to human rights violations under hyper-punitive laws such as the Unlawful Activities Prevention Act, Public Safety Act, Explosives Act, and provisions under the Indian Penal Code pertaining to ‘waging war against the state’. However, the victimisation of Adivasis is not restricted to such hyper-punitive laws.
The Chhattisgarh Excise Act (enacted in 1915 and amended in 2002, 2004, 2011, and 2020) was enacted to regulate the manufacturing, possession, sale, and consumption of both western and home-made liquor. While the Act applies to both Adivasis and non-tribals, the Adivasis are exempted from complete prohibition. Earlier, they were allowed to manufacture, keep, or consume at least 25 bulk litres of liquor. However, this limit was reduced to 5 bulk litres by the 2011 amendment.
Research conducted by Karan Tripathi has revealed that the State’s anti-liquor law, which is a commercial legislation, is routinely invoked by the local police to subject Adivasis to the perils of the criminal justice system. This article summarizes the analysis of cases adjudicated against the Adivasis, under the Chhattisgarh Excise Act from 2016-2019, by the trial courts situated in Dantewada, Bastar, and Sukma. The analysis exposes extremely high rate of acquittal due to violation of due process rights and shoddy investigation. Despite this, there’s an appalling trend of prolonged pretrial incarceration of Adivasis accused under the anti-liquor law, due to denial of bail and inadequate legal aid.
Understanding The Criminalisation Of Adivasis Under The Excise Act: The Study
To understand the impact of the Chhattisgarh Excise Act on Adivasis, a study was conducted of all the judgments passed under the Excise Act by the district courts between 2016-2019 in three LWE regions: Bastar, Dantewada, and Sukma. The research is focused on Section 34 of the Act, which penalises the possession, transportation, or selling of liquor.
A total of 176 judicial orders concerning Section 34 of the Act were retrieved from the e-courts portal. The help of local lawyers representing the Adivasis was taken to identify the orders where the defendant belonged to the Adivasi community. The 176 orders were then categorised under the following heads for the purpose of thematic analysis
- Conclusion of the case: acquittal/conviction, grounds of acquittal/conviction;
- Category of liquor: imported or locally produced for self-consumption;
- Period of undertrial/pretrial incarceration: whether the time spent in prison as an ‘accused not proven guilty’ was within or beyond the statutory limit prescribed for.
- Nature of investigation: reason for apprehension, search and seizure, compliance with procedural due process;
To understand the reasons and motivations underpinning the themes emerging for the judicial data, in-depth interviews were conducted with 40 defence lawyers who have been representing Adivasis in excise matters for 5 years or more.
Locating The Victimisation of Adivasis Under The Amended Anti-Liquor Law
In March 2019, the new government in Chhattisgarh had appointed a committee led by a retired judge of the Supreme Court of India, Justice A.K. Patnaik, to review a total of 23,000 cases pending against the Adivasis. After 9 months, the said Committee recommended the withdrawal of 313 cases registered against the Adivasis under the State’s Excise Act. In its letter to the State’s Law Department, the Committee clearly stated that the maximum number of cases that warrant withdrawal is from the LWE districts such as Dantewada, Sukma, and Bastar. However, the recommendations of the Justice Patnaik Committee are still awaiting the attention of the State Government.
The observations of the Justice Patnaik Committee are a reiteration of what the official prison statistics have been reflecting for years. The overall occupancy rate of prisons in Chhattisgarh is 153.3%, placing it at number 4 in the nationwide rankings. Moreover, Chhattisgarh tops the list of the highest rate of overcrowding in central jails (189.38%). Paradoxically, majority of the inmates languishing in Chhattisgarh’s jails are undertrial prisoners. The evaluation or independent monitoring of what happens in the State’s prisons is pushed further towards opacity by an inadequately functioning prison visiting system.
The prison statistics reflect concerning figures regarding the rate of incarceration under the Excise Act. Out of the 280 prisoners incarcerated for violating different provisions of the Excise Act in three LWE regions between 2016-2019, only 6 are convicts, and 272 are those who are still awaiting commencement or conclusion of their trial. As reflected in the statistics, the overwhelming majority of undertrial prisoners under the Excise Act are Adivasis.
The disproportionately high representation of Adivasis in the incarceration figures under the Excise Act is owed to section 34 which penalises manufacturing, possession, and selling of liquor beyond the permissible quantity. Adivasis are placed at a disadvantageous position by such an ambiguously drafted prohibitory position as manufacturing and consumption of liquor is a part of their cultural heritage and traditions.
Section 34, originally drafted during the colonial period, was amended in 2011 to magnify the penal impact of the said provision. The amended provision has drastically reduced the permissible quantity of liquor from 25 to 5 bulk litres. Additionally, the maximum period of imprisonment has been increased from 1 year to 2 years, while a minimum imprisonment period of 6 months has been introduced. The maximum pecuniary liability, imposed along with the imprisonment, has also been increased significantly to Rs. 50,000, from an earlier figure of Rs. 5000. The amended provision carries an ambiguity which makes it amenable to exploitation by the police – it does not define as to whether the permissible quantity of 5 bulk litres is per person or household.
Observations From Judicial Orders
1. Conclusion of the Case
The judicial orders illustrate the extremely high rate of acquittal of Adivasis in cases registered under the amended section 34 of the Chhattisgarh Excise Act. In Bastar, Adivasis were acquitted in all of the 37 cases. In Dantewada and Sukma, there are only a total of 6 convictions out of 139 cases. In all these 6 cases which ended up in convictions, the Adivasi accused had pleaded guilty of the offence, and therefore, no trial took place to contest the merits of the prosecution/complaint.
2. Category of Liquor
In all the 3 districts, the majority of cases (128 out of 176) against the Adivasis involved locally produced liquor (Mahua) as the subject matter of the complaint. Out of these 128 cases, in 122 cases the seized quantity of liquor was within the permissible limit as prescribed under section 34 of the Excise Act. All of these 122 cases concluded with the acquittal of Adivasis. As per the law in force, Adivasis are permitted to possess 5 bulk litres of locally produced liquor (Mahua) for self-consumption. Further, locally produced liquor (Mahua) was the subject matter of the complaint in all the cases registered against women in these districts. All the Adivasi women who were accused of possessing the locally produced liquor (Mahua) were eventually acquitted by the courts.
3. Period of Pretrial Incarceration
The Proviso to Section 59A of the Chhattisgarh Excise Act prescribes the maximum period of pre-trial incarceration for a person accused of violating section 34 of the Act as 60 days. After the completion of 60 days, the accused is entitled to move an application for ‘default bail.’ In 165 out of the 176 cases against Adivasis under the Excise Act, the accused was incarcerated for a period exceeding the maximum limit prescribed for pretrial incarceration. The period of pretrial incarceration was more than double the statutory limit in 87% of these 165 cases. The problem of prolonged pretrial incarceration under the Excise Act was most visible in the district of Dantewada, where it was beyond the statutory limit in all of the 85 cases.
4. Nature of Investigation
The most striking feature of the data regarding nature of the investigation in cases against Adivasis is, that in none of the cases were the search and seizure procedures conducted in presence of independent witnesses. All the judicial orders acquitting the Adivasi accused have recorded that the independent witnesses had no knowledge, and thereby, did not support the prosecution’s case.
Another predominant theme that emerges from the judicial orders is the failure to comply with procedures for search and seizure, disclosure to superior authorities, and maintenance of a record of the chain of custody. In Dantewada, 98% of acquittal orders have recorded that the police failed to prove the unbreakable chain of custody of the recovered sample of alcohol. This indicates that the courts had reasonable doubts regarding the veracity of the evidence recovered by the investigating agency. Moreover, in Sukma, all the acquittal orders have noted that the police officer that recovered the liquor from the accused, failed to inform the Sub-Inspector of Excise Department within reasonable time, violating the mandatory disclosure requirement under the Excise Act.
The data from judicial orders also reflect the police’s reasons for conducting raids and search and seizure procedures in Adivasi households. In 91% of cases in Sukma, and 96% cases in Dantewada, the police had proceeded to conduct raids based on a ‘reasonable apprehension’ or ‘an undisclosed information’. In none of the cases in Sukma, the searching officer maintained a written record to show reasons for proceeding with search without a prior warrant. These practices, which contradict established law on search and seizure, contributed significantly to the illegal detention and subsequent acquittal of Adivasis in excise cases against them.
Part II of this article shall further elaborate on, and explain the empirical findings through data collected during interviews.
Karan Tripathi is a lawyer, legal journalist, and a researcher on criminal justice