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Jindal Journal of Public PolicyEditors-in-Chief:C. Raj Kumar, Professor and Vice Chancellor, O.P. Jindal Global UniversitySudarshan Ramaswamy,Professor and Dean, Jindal School of Government and Public PolicyExecutive Editors:Aseem Prakash, Associate Professor and Assistant Dean, Jindal School of Government and Public PolicySwagato Sarkar, Associate Professor and Assistant Dean, Jindal School of Government and Public PolicyEditorial Advisory Board :Daniel Bach, Professor & Directeur de recherche du CNRS Centre Emile Durkheim – Science Politique etSociologie comparatives, Sciences, Université de Bordeaux, FranceSeyla Benhabib, Eugene Meyer Professor of Political Science and Philosophy, Yale University, USASarah Cook, Director, United Nations Research Institute for Social Development, SwitzerlandLeela Fernades, Professor of Women's Studies and Political Science, University of Chicago, USAAlfredo Saad Filho, Professor of Development Studies, School of Oriental and African Studies,University of London, UKJean-Louis Halpérin, Professor of Law and Public Policy, Ecole Normale Superieure, FranceRobert Jenkins, Professor of Political Science, Hunter College and The Graduate Center, City Universityof New York, USAAmitabh Mattoo, Professor and Director, Australia India Institute, University of Melbourne, AustraliaPrachi Mishra, Senior Economist, International Monetary Fund, USAMick Moore, Professorial Fellow, Institute of Development Studies, UKPeter Newell, Professor of International Relations, University of Sussex, UKIfeanyi Prinuel Onyeonoru, Professor and Director, Centre for Peace and Conflict Studies, Universityof Ibadan, NigeriaAseem Prakash, Professor of Political Science, Walker Family Professor for the College of Arts andSciences, University of Washington, USAGustav Ranis, Frank Altschul Professor Emeritus of International Economics, Yale University, USASanjay G. Reddy, Associate Professor, The New School for Social Research, USADani Rodrik, Professor of International Political Economy, Harvard University, USAGita Sen, Professor, Indian Institute of Management, Bangalore, IndiaIan Shapiro, Sterling Professor of Political Science and Henry R. Luce Director, The Whitney and BettyMacMillan Center for International and Area Studies, Yale University, USAT.N. Srinivasan, Professor Emeritus in Economics, Yale University, USAFrances Stewart, Professor Emeritus in Development Economics, University of Oxford, UKArvind Virmani, Executive Director, International Monetary Fund, USAJindal Journal of Public Policy is published once a year by the Jindal School of Government andPublic Policy.Copyright: Copyright of the published articles, including abstracts, vests in the Jindal Journal of PublicPolicy. The objective is to ensue full copyright protection and to disseminate the articles, and the Journal,to the widest possible readership. Authors may of course use the article elsewhere after obtaining priorpermission from the Jindal School of Government and Public Policy. Authors are themselves responsibleto obtain permission to reproduce copyright material from other sources.Disclaimer: The publisher and the editors cannot be held responsible for errors or any consequencesarising from the use of information contained in this Journal. The views and opinions expressed do notnecessarily reflect those of the publisher and the editors.Editorial and Business Address: Editor, Jindal Journal of Public Policy, Jindal School of Governmentand Public Policy, O.P. Jindal Global University, Sonipat Narela Road, Near Jagdishpur Village, Sonipat,Haryana-131001, NCR of Delhi, India; Tel: (91-130) 3057911; (91-130) 3057800, Fax: (91-130)3057888/808; Email: jjpp@jgu.edu.in, website: http://www.jsgp.edu.in/content/jindal-journal-publicpolicy

JINDAL JOURNAL OF PUBLIC POLICYAUGUST 2013 VOLUME 1 ISSUE 2ContentsForeword 1ArticlesThe Changing Nature of the Dominant Justifications that Legitimated 4the Oppression of African–Americans in the United StatesKevin BrownLeft at the Margin 31V.S. SreedharaThe Bleaching Syndrome: Skin Colour as the Basis of 40Oppression vis-à-vis African–Americans/Dalit–IndiansRonald E. HallInclusive Development, Civil Society and Socio-economic Rights: 64Legislative Initiatives and Judicial DecisionsS. JaphetLaw and the Loss of Livelihood: The Hawadigas (Snake Charmers) 79and Qalandars (Bear Charmers) of Karnataka, IndiaKhan Nadim Ali HaiderThe Employment and Economic Advancement of 95African–Americans in the Twentieth CenturyKenneth Glenn Dau-Schmidt and Ryland ShermanAffirmative Action and Social Justice–Reflections 117on the Judgements of the Indian Supreme CourtVanishree Radhakrishna

84 Jindal Journal of Public Policy, Vol. 1, Issue 2subsistence and development; and to engage freely in all their traditionaland other economic activities. Furthermore, the indigenous people areentitled to just and fair redressal where they are deprived of their meansof subsistence and development. 14Indian Law and Criminalisation of Hawadigas and QalandarsIndia has two laws and a series of rules to deal with the subject of wildlifeprotection and animal welfare. The Prevention of Cruelty to Animal Act1960 (PCAA), and The Wildlife (Protection) Act, 1972 (WPA) are bothprohibitory and regulatory in nature. The latter prohibits and regulatesvarious trades and practices associated with certain wild animals.As far as the Hawadiga and Qalandar communities are concerned, boththe above laws have both disabling and enabling impacts. In a nutshell,they allow the Hawadiga and Qalandar communities to own, possessand inherit bears and snakes in a regulated manner but prohibit andpunish the acquisition, possession and control of wild animals without acertificate of ownership; hunting; 15 training, exhibition of and abolitionof the performer’s registration for certain animals; [meting of] crueltreatment to animals; and the human use of performing animals incertain circumstances.The WPA subjects the custody, control or possession of animals listed inSchedule I or Part II of Schedule II to a declaration of stock to the ChiefWildlife Warden 16 for getting the ownership certificate 17 and furtherprescribes a provision of prior permission of the Chief Wildlife Wardenfor continuing its acquisition, receipt, control, custody and possessionand sale. 18 the WPA per se does not prohibit the custody, control andpossession of wild animals. The Central Government has also enactedthe Wildlife (Stock Declaration) Central Rules, 1973, which requires adealer 19 in animals and animal articles to declare his ownership of boththe latter. 20 Interestingly, however, the indigenous communities wereinitially kept out of the coverage of these Rules. This meant that evenafter the passage and enactment of the above Rules, communities likethe Hawadigas and Qalandars were legally entitled to continue their ageoldcustomary right to own and possess snakes and bears without anyinterference from the law and law-enforcing agencies. This situationcontinued till 2002, when the WPA was amended to limit and restrict theapplication of Sub-section 2 of Section 40, on the acquisition, receipt,control, custody and possession, and sale of any specified animals andanimal articles, only by way of inheritance 21 and by way of declaration. 22

Law and the Loss of Livelihood 85It had imposed a complete closure on any move to own new animalsbut allowed their inheritance. It further expanded the coverage ofthis provision relating to declaration to everyone, including dealers aswell as the indigenous communities by allowing them a last and finalopportunity to declare under Section 40 of the Act, 23 and abated allaction and pending legal proceedings for its violation. 24 The Declarationof Wildlife Stock Rules, 2003, 25 has, for the first time, referred to localcommunities and recognised their right to continue the possession andcustody of wild animals. This Rule was specifically designed to recognise,protect and ensure the right of local communities such as the Hawadigasand Qalandars in order to facilitate the declaration and certification ofwild animals. Significant mandatory duties were also imposed on theChief Wildlife Warden, including the duty to accord wide publicityand take all necessary measures to assist the local communities andindividuals, especially the poor and the illiterate, in the declaration oftheir possessions, filling up of forms, and other such tasks, and to makeevery attempt to ensure that no individual or community associated withanimals is deprived of this opportunity. 26The WPA prohibits hunting. 27 Until 1991, the hunting of animals exceptSchedule I animals was permitted and hunting licences were issued by theChief Wildlife Warden for certain purposes, including game hunting andwildlife trapping, but this was completely prohibited afterwards 28 exceptin the case of certain specified circumstances, 29 and special purposes 30 ,with prior approval from the Chief Wildlife Warden and the Government,respectively. For the purpose of this article, it needs to be pointed out thatthe hunting (capturing) of more than 21 species of snakes including cobrasand kraits 31 ; dhaman (rat snake); 32 Indian cobras including all sub-speciesof genus naja; 33 King Cobra; 34 and pythons 35 is prohibited. Similarly, thehunting of three species of bears is prohibited, viz. the Sloth Bear; 36 theHimalayan Brown Bear, 37 and the Himalayan Black Bear. 38Meanwhile, the Parliament too enacted the PCAA to prevent theinfliction of unnecessary pain or suffering on animals, 39 that is, ‘anyliving creature other than a human being’. 40 This law regulates humanpractices concerning all animals and penalises its contravention. Itimposes a mandatory duty on every custodian or caretaker of animal(s),to ensure the well-being of and to prevent the infliction of unnecessarypain or suffering upon animals. 41 It legalises and regulates the humanuse of animals for ‘training and exhibiting’, 42 precisely for paid publicentertainment, 43 with the prior registration of the performing animal andexhibitor. 44 It is important to note that the performing animal in questionshould not be prohibited and restricted from exhibition and training by

86 Jindal Journal of Public Policy, Vol. 1, Issue 2the Central Government 45 or by the magistrate on a police complaintabout the cruel treatment to performing animals during their trainingand performance. 46 It also penalises anyone found to be ‘treating animalscruelly’. 47The exhibition or training of bears, monkeys, tigers, panthers and lionswas prohibited and made illegal for the first time in the year 1998. 48 Theconstitutional validity of Notification No. G.S.R. 619(E), issued by theMinistry of Social Justice and Empowerment, Union of India, on 14October 1998, was challenged in various High Courts, including the Delhiand Kerala High Courts, by representatives of the circus, including the IndianCircus Federation (ICF), on the ground of violation of Articles 14, 19 (1)(g) and 21 of the CoI. The Kerala High Court 49 upheld the constitutionalvalidity of the above notification and observed that the petitioners have nofundamental right to carry on a trade or business entailing the exhibitionor trading of animals covered by the notification. Its impact on any of therights under clause (1) of Article 19 of 21 is merely incidental, indirect,remote or collateral. There is a direct and proximate nexus between theprohibition of training and exhibition of the specified animals and theobject sought to be achieved as stated in the preamble to the Act, that is,the prevention of infliction of unnecessary pain and suffering on animals.Thus, the anvil of Article 19 or 21 would not be available for judging itsinvalidity. The result, therefore, is that the notification is not liable to bestruck down on the ground of violation of the fundamental right underArticle 19(1) (g) of the Constitution of India. Further, the Court observedthat the right to life guaranteed under Article 21 does protect livelihood,but its application cannot be extended or stretched to any trade, businessor avocation which is injurious to public interest or has an insidious effecton public morals or public order. Accordingly, the submission based onArticle 21 was rejected. The above order of the Kerala High Court wasupheld by the Supreme Court of India. 50 The latter has observed that inthe exercise of judicial review, neither the High Court nor the SupremeCourt can go into the correctness of the decision of the Government inissuing the said notification and categorically maintained that despite theprohibition of exhibition and training of the above animals, the PCAAdoes not prevent the owner from keeping them as domestic pets.In a case where the application of this notification was discussed bythe Karnataka High Court, a ban was sought on the exhibition of allperforming animals in the state of Karnataka under the PCAA. TheKarnataka High Court had termed the Public Interest Litigation (PIL)concerned as a misconceived litigation and emphasised that “nothingcould prevent a person duly registered under PCAA to exhibit and train

Law and the Loss of Livelihood 89(> 16 per cent), the action was led by animal rights groups in the presenceof the police. This clearly means that in 80 per cent of the cases, theentire action against the snake charmers was launched by the animal rightsgroups alone, without the involvement of either the police or the forestdepartment, and those taking action did not resort to any legal process atall.Legality of Search, Seizure, Confinement andRestraint and Use of Physical ForceThe carrying, training and exhibiting of snakes per se are not illegal orviolative of the WPA and PCAA. The ownership of snakes or any otherwild animals is regulated and the declaration of possession and ownership,registration and certification of such animals are necessary conditions asper the provisions of the WPA. Similarly, the training and exhibiting ofsnakes is legally allowed under the PCAA, provided the snakes are notbeing subjected to any cruelty and pain.At the first instance, the question of proving the legality or illegality of search,seizure, confinement and restraint, and the use of physical force comesinto the picture only when the performers or snake charmers are found tobe carrying snakes and inflicting pain on the captive snakes. Interestingly,it needs to be emphasised here that out of the thirty reported incidentsduring the past three years, only nineteen (around 65 per cent of the total)performers were found to be carrying snakes while the remaining eleven(around 35 per cent of the total) performers were not carrying snakes whileexhibiting their street shows. All the eleven performers were just showingtheir magic tricks on the streets but were still subjected to harassment andviolence. In all the thirty cases, the magic kits and props of the performerswere seized by the police and animal rights groups, irrespective of whetheror not they found snakes in the possession of the performers.In all the five cases wherein the police were directly or indirectly involvedand the snake charmers were arrested and sent to judicial custody, thecopies of the FIR were given to the accused; they were also not allowed tocontact their respective families; The inventory/memo of the items seizedfrom the performers, viz. their magic kits and musical instruments, amongother things, were also not given to them nor were the seized materialsreturned to them. The guidelines laid down in DK Basu case 55 were thusutterly ignored by the police while acting against these snake charmers.The PCAA requires non-governmental organisations (NGOs) and privateindividuals to give written complaints about the cruelty inflicted on the

90 Jindal Journal of Public Policy, Vol. 1, Issue 2snakes but the former are not allowed to search the belongings of thesnake charmers, or to seize their snakes, or release them in the wild/forest, or even to confine/restrain the snake charmers. The police canonly make enquiries and forward the matter to the competent Magistrate,who may order the prohibition of training and exhibition of the snakes inaccordance with Section 24 of the PCAA, after giving the snake charmersan opportunity of being heard. In relation to the seizure and forfeitureof the snakes, according to the PCAA, 56 the owner of the animal can bedeprived either permanently or for a fixed time period, of the custody ofthe animal by an order of a Court only on conviction. The police can onlyseize the animal to produce it before a magistrate or a veterinary officerfor examination. 57It is noteworthy that no complaint has ever been lodged against theanimal rights activists by the snake charmers. The reasons for the latternot initiating any action against the activists could be the prevalence ofextreme poverty, illiteracy, lack of awareness about laws, or wrong ormisleading knowledge of laws, in general, and particularly, due to the fearof both police and animal rights groups that they might be implicated infalse cases and arrested or jailed and that they would face more harassmentand violence at the hands of the police.Conclusion and Way ForwardIt can thus be concluded that though once respected, the Hawadiga andQalandar communities today face the perpetual stigma of criminality andcomplete loss of identity, and find no space in the national economy,except as unskilled casual labourers and beggars, as though they are waitingfor their own extinction. The present socio-economic condition and theexclusion of both the Hawadiga and Qalandar communities in the scopeof the WPA and PCAA raise serious concerns and questions aroundthese laws, their selective interpretation and implementation, and theaccountability of the institution of law. Both the laws mentioned aboveare inherently exclusionary and discriminatory against the Hawdigas andQalandars, as they negate the very essence of the human rights approach,that is, encouraging the participation and protection of vulnerable groups.They violate the right to promote, preserve and practise culture and theright to restitution and rehabilitation under the UNDRIP. The functionof the law, in general, is not to criminalise but to reform, redress andrehabilitate. In contrast, the wildlife law and animal welfare laws in Indiahave been used largely to criminalise the traditional communities thoughit is inexplicable as to why the same laws have not been used to reform,redress and rehabilitate the communities concerned.

Law and the Loss of Livelihood 91Moreover, there is also a serious lack of will to implement the law in theright spirit. The law is clear in terms of providing a last opportunity to thelast generations of the two communities to carry out their traditional waysof life. Despite this, why has the community not been sensitised and madeaware about the law and the process of certification that would enablethem to continue with their traditional right to possess snakes and bears?Why have the enabling provisions of the Declaration of Wildlife StockRules, 2003, not been used to allow the community to avail of and securetheir traditional rights? On the contrary, the same provisions have beenselectively used to strip these communities of their traditional rights topossess snakes and bears. The seizure of snakes and bears is, in fact, an actof deception, as both the Government and the concerned animal rightsgroups have made no effort to implement the Rule of 2003. Despite thefact that the ban on training and exhibition of bears does not apply tothe Qalandar community, its members have been routinely harassed andpersecuted for practising their traditional occupation. The law prescribesa process of search and seizure wherein the power to do so vests withthe police and not with the animal rights groups. Does this not makethe intervention of the latter illegal, thereby leading to the violation ofconservation and animal welfare laws? What is the justification of the useof force and violence against the indigenous communities while they areperforming their traditional vocations? Is this not antithetical to the basictenets of human rights? It appears that arbitrariness is the only rule when itcomes to the application of the law to protect the interests of the poor andweaker communities like the Hawadigas and Qalandars. The Governmenthas also done very little to respect its international commitment towardsthe restitution and rehabilitation of these communities.A larger question must also be raised regarding the schematic approachof the Government to the issue of rehabilitation, in general. Can theGovernment ever restore their respect, dignity and identity, or can it eithercreate a new dignified identity for them instead of subjecting them to theidentity of poor Muslims, beggars, unorganised labourers and so on?The traditional communities are trapped in the duality and become victimsof the conflict of rights versus rights. Therefore, what is needed is a prudentapproach in order to balance the wildlife conservation and animal welfarelaws with the right of the indigenous communities of snake charmers andbear charmers to an identity, dignity, and the life and livelihood they havebeen used to for generations. The recognition of the cultural rights of thesecommunities in line with India’s international obligations under UNDRIPis also of utmost importance. Further, the ambiguity of laws, particularlythe WPA, PCAA and the Notification of 1998, should be countered by the

92 Jindal Journal of Public Policy, Vol. 1, Issue 2categorical exemption of the traditional communities from its ambit andby the initiation of a fresh process of stock declaration and registration ofwild animals in line with the Rule of 2003.The Scheduled Tribes and Other Forest Dwellers (Recognition ofForest Rights) Act, 2006, recognises the cultural and economic rights ofthe Scheduled Tribes (STs) and forest dwellers, but there is a completelegal vacuum as far as the recognition and protection of the culturaland economic rights of the traditional and nomadic and semi-nomadiccommunities are concerned. The enactment of a similar legislation torecognise and protect the cultural and economic rights of nomadic tribesalong with a robust rehabilitation scheme covering all the rights and needsof the community, including their education, livelihood, health, shelter andaffirmative action would prove to be a milestone in ameliorating their lowsocio-economic status.Notes1Keshwananda Bharati vs. State of Kerala, AIR 1973 SC 1461.2Article 48A, CoI, Inserted by 42 Amendment Act, 1976.3Article 51A (g), CoI, Inserted by 42 Amendment Act, 1976.4Item No. 17B, List III, Schedule 7, CoI, Inserted by 42 Amendment Act, 1976.5Item No. 17, List III, Schedule 7, CoI, Inserted by 42 Amendment Act, 1976.6Article 243W r/w, Item Nos. 8 and 15 of Schedule XII, CoI, Inserted by 42 AmendmentAct, 1976.7General Assembly Resolution No. 61/295, Adopted on 13 September 2007.8Article 11, UNDRIP.9Article 26, UNDRIP.10Article 11 UNDRIP.11Article 26, UNDRIP.12Article 31, UNDRIP.13Article 31, UNDRIP.14Article 20, UNDRIP.15Section 2(16), WPA, “Hunting” includes: (a) capturing, killing, poisoning, snaring, andtrapping of any wild animal and every attempt to do so, (b) driving any wild animal forany of purposes specified in sub-clause, (c) injuring or destroying or taking any part ofthe body of any such animal, or in the case of wild birds or reptiles, damaging the eggs ofsuch birds or reptiles, or disturbing the eggs or nests of such birds or reptiles.16Section 40(1), WPA.17Section 42, WPA.18Section 40 (2), WPA.19Section 2 (11), WPA: “dealer” means any person who carries on the business of buyingand selling any captive animal, animal article, trophy, uncurled trophy, [meat or specifiedplant].20Rule 2, the Wildlife (Stock Declaration) Central Rules, 1973.

Law and the Loss of Livelihood 9321Section 40 (2A), WPA, As amended by Section 25 of the Wildlife Protection AmendmentAct, 2002.22Section 40 (2B), WPA, As amended by Section 25 of the Wildlife Protection AmendmentAct, 2002.23Section 40A (1), WPA, As amended by Section 26 of the Wildlife Protection AmendmentAct, 2002.24Section 40A (2), WPA, As amended by Section 26 of the Wildlife Protection AmendmentAct, 2002.25Notification No. SO 445 (E), dated 18 April 2003, Union Ministry of Environment andForests, Government of India.26Rule 3, the Declaration of Wild Life Stock Rules, 2003.27Section 2(16), WPA.28Section 9, WPA, As amended in 1991, prohibited hunting of all animals listed in SchedulesI–IV of WPA.29Section 11, WPA, As amended in 1991.30Section 12, WPA, As amended in 1991.31Listing No. 12(iv), Schedule IV, WPA,32Listing 9, Schedule II, Part II, WPA.33Listing 11, Schedule II, Part II, WPA.34Listing 12, Schedule II, Part II, WPA.35Listing 14A, Schedule 1, Part II, WPA.36Listing No. 5, Schedule II, Part II, WPA.37Listing No. 2, Schedule II, Part II, WPA.38Listing No. 2A, Schedule II, Part II, WPA.39Preamble, PCAA.40Section 2(a), PCAA.41Section 3, PCAA.42Section 21, PCAA.43Rule 2(h), Performing Animals (Registration) Rules, 2000.44Rule 3, Performing Animals (Registration) Rules, 2000.45Section 22, PCAA.46Section 24, PCAA.47Section 11, PCAA: ‘Treating an animal cruelly’—Beating, kicking, over-riding, driving, loading,torturing or causing unnecessary pain or suffering; employing any animal who is unfit forthe work due to its physical condition, age, infirmity, disease, etc.; administering any injuriousdrug or substance; carrying any animal in a manner causing unnecessary pain or suffering;keeping or confining in cage or other receptacle, restricting its movement; keeping chained byshort or heavy chain or cord; failure to provide adequate food, drink or shelter; or mutilatingor killing in any other unnecessarily cruel manner amount to cruelty against animals, and arepunishable with a fine of Rs. 10 to Rs. 50 for the first offence and Rs. 25 to Rs. 100 and/orimprisonment up to three months for subsequent offences.48Notification No. G.S.R. 619(E), issued by Ministry of Social Justice and Empowerment,Union of India, on 14 October 1998.49Balakrishnan vs. Union of India, High Court of Kerala [Order Dated 06.06.2000].50N.R. Nair and Others vs. Union of India and Others; AIR 2001 SC 2337.51People for Animals vs. The State of Karnataka and Others, 2001(1) KCCR 175.52Section 21, PCAA.53Jadugar Anand vs. State of MP and Others, 2003(1) MPHT297, 2003(1) MPLJ 231.

94Jindal Journal of Public Policy, Vol. 1, Issue 254Around two years back, one Hawadiga Syed Ameer, along with his friend, was exhibitinga street show at Jadahalli Cross, Bangalore, when they were interrupted by a person, supposedlyfrom an animal rights group. They allowed him to search all their belongings. Heleft the place and came back with a few policemen and assembled a crowd and instigatedthe crowd by calling the Hawadigas poachers. They were beaten mercilessly with sticksby the crowd led by him in the presence of the police, which resulted in Ameer’s handgetting fractured. The crowd tore down their clothes, blackened their faces and paradedthem in underwears in the entire vicinity. They were kept naked in the open ground formore than six hours. Later, the policemen drove them away in their naked condition aftertaking their clothes, magic kit, snakes and money.55D.K. Basu vs. State of West Bengal; AIR 1997 SC 610.56Section 29, PCAA.57Section 34, PCAA.ReferenceKumar, Ajith and Khan Nadim Ali Haider. 2011. “Law and Loss of Livelihood: The Hawadigasand Qalandars of Karnataka”, A study report published by the Centre for Study ofSocial Exclusion and Inclusive Policy, National Law School of India University, Bangalore,September.