In Part I of the article, the author laid out their empirical findings regarding the cases adjudicated against the Adivasis, under the Chhattisgarh Excise Act from 2016-2019, by the trial courts situated in Dantewada, Bastar, and Sukma. Part II further substantiates the data through reasoning.
What Explains Rising Cases Against Adivasis Under The Excise Act Despite High Rate of Acquittal
The data illustrated in Part I shows that almost all the cases filed against Adivasis under the Chhattisgarh Excise Act conclude with acquittal, due to the same reason across the board – faulty investigation. The investigation in these cases has shown the same trajectory of violation of due process rights of the accused, as enshrined under the Criminal Procedure Code, 1973 and the Excise Act itself.
The most prominent themes explaining the rising cases that emerge from narratives of defence lawyers are: corruption and exploitation by the police officers to meet targets set by the Excise department, lack of awareness among the Adivasis about the amended Excise law, inadequate representation of Adivasis in the lawmaking and enforcement processes, lack of access to adequate legal aid, and lack of judicial activism.
Pressure To Meet The Prosecution Targets
Through interviews conducted with advocates in LWE region, it was observed that police officers in the LWE districts have to work under the institutional pressure of meeting the targets set by the State Government’s Excise Department. These monthly targets of having a minimum number of registered cases and initiated prosecutions are directly linked to the performance assessment of concerned police stations. These targets are not mentioned in any statute, but are enforced through the informal control of the institutional practices of the Excise Department. The local police handle the burden of meeting these targets by conducting indiscriminate raids in Adivasi households, where they believe they’re most likely to find liquor.
‘Local police have a nexus with the Inspector level officers of the Excise department to meet a monthly target of cases’, advocate Xitij Dubey said. ‘Since Adivasis are allowed to have a certain amount of liquor for their self-consumption, they became easy targets of random raids and false cases’, the advocate from Dantewada continued.
The ‘indiscriminate’ or ‘random’ nature of these raids is substantiated by the data emerging from the judicial orders. In 98% of the cases, the prosecution narrative has described ‘an apprehensive thought’, ‘feeling of the officer’, and ‘undisclosed information’, as grounds for conducting raids. The process of selecting Adivasi households for conducting raids is also informed by the existing files on individuals who were earlier prosecuted for violating the Excise Act. Advocate Arjun Nag, who has been representing Adivasis for over 10 years in the LWE district of Bastar, submitted that the local police mostly target those Adivasi households who have a member who has already faced prosecution under the Excise Act. This process leads to the secondary victimisation of those Adivasis who have already been once subjected to the perils of the criminal justice system. The maintenance of crime data, along with the pictures and addresses of those once prosecuted, condemns an Adivasi to an endless cycle of fear, indiscriminate raids, and false prosecutions. This data, which is heavily relied upon by the police to select targets, continues to retain the personal information of those who eventually get acquitted by the court.
‘This increases the possibility of recovering liquor from that household. Police constables simply get their (Adivasis) information from the case files, tracking becomes easier, and these households get easily intimidated by the police due to prior exposure to the system… Once you get trapped in this system, it’s near impossible to escape,’ Mr. Nag informed.
Arbitrary Search and Seizure
These indiscriminate and random raids are followed by arbitrary search and seizure procedures. Interviewees shared that the police rarely complied with the procedural safeguards laid down in either the Excise Act or the Criminal Procedure Code. The most flagrant violations are the absence of search warrant, written explanations for conducting seizure of sample without a warrant, absence of independent witnesses during search and seizure operations, doctored search memos, and inadequate documentation to prove chain of custody of the seized sample. In addition to violating procedural safeguards, the local police also indulge in the malfeasance of the procedures that they do follow. For instance, police manipulate the quantity of the liquor recovered to make it qualify for an aggravated offence under section 34 of the Excise Act. Since, the Adivasis are allowed to possess 5 bulk litres of liquor for self-consumption, this act of manipulating the recovered quantity is done to manufacture a case where none exists.
‘Sometimes they don’t even get the measuring canister during search and seizure (Advocate Dubey, Dantewada)… Police put 2 or 3 bulk litres of liquor in a 7 bulk litre canister, just to show the court that an illegal quantity of liquor was recovered (Advocate Rao, Sukma)… There’s a common practice by the police to mix water in the recovered liquor just to make it qualify for the offence under Section 34 (Advocate Aashiq, Bastar).’
The “Manufacturing” of Independent Witnesses
The method of adjoining ‘independent witnesses’ after the completion of search and seizure operations has appeared across the 40 interviews. These witnesses, who did not actually witness the search and seizure operations, are contacted by the police days after the registration of the case. These people are threatened to sign the doctored search memo and falsified statements to support police’s narrative. This claim supports the observations made by the courts while acquitting the accused Adivasis. As it appears from the analysis of judicial orders, in all the cases of acquittals, the courts have cited the inability of the ‘independent witnesses’ to support the case of the prosecution as one of the fundamental reasons for acquittal. Advocate Venugopal Rao for Bastar gave the following anecdote during his interview to throw light on process of adjoining false independent witnesses:
‘These witnesses are picked up days after the registration of the case. They (police) give them (witnesses) those statements to sign which were written in the police station, and these witnesses don’t even know what’s there in those statements; they don’t even know how to read and write.’
Prolonged Pretrial Incarceration
The narratives that have emerged from the interviews have grounded the victimisation of Adivasis, from illegal investigations to prolonged pretrial incarceration, to their alienation from the political and economic discourse on law enforcement. As per the fact-finding committee constituted by the union government, more than half of Adivasi population in Chhattisgarh is illiterate, making it the region with highest illiteracy rate among Scheduled Tribes in the country. The alarming rate of illiteracy, along with the inadequate implementation of the constitutional provisions for self-governance, have made Adivasis extremely vulnerable to the exploitation by the agencies of the criminal justice system. This vulnerability extends to their exploitation under the excise law as well:
‘State government made no efforts to disseminate the changes in Excise law to the Adivasis, they don’t even know that they’re allowed to keep 5 bulk litres for self-consumption (Advocate Khandelwal, Bastar)… how do you expect illiterate Adivasis to read the Excise Act (Advocate Bhuria, Dantewada)… due to lack of education and knowledge about the law, Adivasis get easily intimidated by the police (Advocate Bhulai, Sukma)… The lawmakers sitting in the capital don’t know anything about Adivasis, and they don’t want to know; they’re interested in Adivasi land and not in Adivasi person (Advocate Dubey, Dantewada)’.
Alienation of Adivasis From Police Discourse
The lack of representation of Adivasis in policy and enforcement processes results in the framing of laws which are ignorant of their cultural and economic traditions. This is evident in the decision of the government to include locally produced liquor (Mahua) in the list of prohibited substances under the Excise Act. Mahua liquor has been traditionally produced by Adivasi women for auspicious occasions such as marriages, child-birth, etc. Many who are charged under the Excise Act for producing Mahua liquor are unaware of its illegality. This narrative, which emerged from the interviews, provides an explanation of the theme that emerged from the analysis of judicial orders; where all the cases registered against Adivasi women were for possessing locally produced Mahua liquor.
The most concerning feature of how the Excise Act is invoked against the Adivasis is the rising rate of their pre-trial incarceration. An overwhelming majority of Adivasis, who were eventually acquitted by the courts, were incarcerated for a period which was at least double the maximum limit prescribed for pretrial incarceration under the Excise Act. Defence lawyers attributed this to lack of access to legal aid, and inadequate judicial activism as major contributors to this phenomenon. Magisterial courts in LWE have shown great reluctance in granting bail in excise cases, citing the commercial and complex nature of the Excise Act as one of the reasons. Denial of bail by the Magisterial courts have become a norm, and the aggrieved accused is expected to approach the High Court or the Sessions Court to seek bail. However, lack of finances and inadequate access to quality legal aid makes it nearly impossible for the Adivasis to travel all the way to the High Court, which is situated in the State’s capital, to seek bail. The result is their prolonged pretrial incarceration in a case which they were statistically likely to get acquitted due to the faulty police investigation.
‘Magistrates are too scared to grant bail in Excise matters; they think they’re not empowered to do that. They will not even conduct a proper hearing and will simply ask the accused to approach the High Court. The poor Adivasi, who neither has money or sufficient help, is left with no option but to remain in jail’, Advocate Dubey from Dantewada pointed out. In Dantewada, in none of the cases an Adivasi accused was released from custody within the prescribed period of 60 days.
The reasons provided in the study for the disproportionate representation of Adivasis in excise cases despite the high rate of acquittal, reflect a flagrant violation of the state’s constitutional commitment to ensure Adivasi’s right to equality, liberty, dignity, and privacy. The research indicates that colonial stigmatization of Adivasis in South Chhattisgarh as ‘born criminals’ continues, and thus, systemic reform is required to include sensitization of legislators and law enforcers to ensure that the system appreciates the culture and individuality of the Adivasis.
Karan Tripathi is a lawyer, legal journalist, and a researcher on criminal justice