law and loss of livelihood: snake charmers and bear charmers of karnataka, india

8/11/2019 Law and Loss of Livelihood: Snake Charmers and Bear Charmers of Karnataka, India

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JINDALJOURNALOFPUBLICPOLICY

ISSUE2VOLUME1AUGUST2013

ISSN 22778743

SPECIALISSUEONDIVERSITY, DISCRIMINATION& SOCIALEXCLUSION

ININDIAANDTHEUSA

MAURER SCHOOL OF LAWINDIANA UNIVERSITY

Bloomington

NATIONAL LAW SCHOOL

OF INDIA UNIVERSITY

Bangalore

ARTICLES

FOREWORD

The Changing Nature ofthe Dominant Justificationsthat Legitimated the Oppressionof African-Americans in the United StatesKevin Brown

Left at the MarginV.S. Sreedhara

The Bleaching Syndrome: SkinColour as the Basis of Oppression vis--vis

AfricanAmericans/DalitIndiansRonald E. Hall

Inclusive Development,Civil Society and Socio-economicRights: Legislative Initiatives and

Judicial DecisionsS. Japhet

Law and the Loss of

Livelihood:

The Hawadigas (Snake Charmers)

andQalandars(Bear Charmers)of Karnataka, India

Khan Nadim Ali Haider

The Employment and

Economic Advancement of

AfricanAmericans in

the Twentieth Century

Kenneth Glenn Dau-Schmidt

and Ryland Sherman

Affirmative Action and

Social JusticeReflections

on the Judgements of

the Indian Supreme Court

Vanishree Radhakrishna


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Jindal Journal of Public Policy

Jindal Journal of Public Policyis published once a year by the Jindal School of Government andPublic Policy.

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Editors-in-Chief:

C. Raj Kumar,Professor and Vice Chancellor, O.P. Jindal Global University

,Professor and Dean, Jindal School of Government and Public Policy

Executive Editors:

Aseem Prakash,Associate Professor and Assistant Dean, Jindal School of Government and Public Policy

Swagato Sarkar,Associate Professor and Assistant Dean, Jindal School of Government and Public Policy

Editorial Advisory Board :

Daniel Bach,Professor & Directeur de recherche du CNRS Centre Emile Durkheim Science Politique etSociologie comparatives, Sciences, Universit de Bordeaux, France

Seyla Benhabib,Eugene Meyer Professor of Political Science and Philosophy, Yale University, USASarah Cook,Director, United Nations Research Institute for Social Development, Switzerland

Leela Fernades,Professor of Women's Studies and Political Science, University of Chicago, USA

Alfredo Saad Filho, Professor of Development Studies, School of Oriental and African Studies,University of London, UK

Jean-Louis Halprin,Professor of Law and Public Policy, Ecole Normale Superieure, France

Robert Jenkins,Professor of Political Science, Hunter College and The Graduate Center, City Universityof New York, USA

Amitabh Mattoo, Professor and Director, Australia India Institute, University of Melbourne, Australia

Prachi Mishra, Senior Economist, International Monetary Fund, USA

Mick Moore,Professorial Fellow, Institute of Development Studies, UK

Peter Newell,Professor of International Relations, University of Sussex, UK

Ifeanyi Prinuel Onyeonoru, Professor and Director, Centre for Peace and Conflict Studies, Universityof Ibadan, Nigeria

Aseem Prakash,Professor of Political Science, Walker Family Professor for the College of Arts andSciences, University of Washington, USA

Gustav Ranis,Frank Altschul Professor Emeritus of International Economics, Yale University, USA

Sanjay G. Reddy,Associate Professor, The New School for Social Research, USA

Dani Rodrik, Professor of International Political Economy, Harvard University, USA

Gita Sen, Professor, Indian Institute of Management, Bangalore, India

Ian Shapiro, Sterling Professor of Political Science and Henry R. Luce Director, The Whitney and Betty

MacMillan Center for International and Area Studies, Yale University, USAT.N. Srinivasan,Professor Emeritus in Economics, Yale University, USA

Frances Stewart,Professor Emeritus in Development Economics, University of Oxford, UK

Arvind Virmani,Executive Director, International Monetary Fund, USA

Sudarshan Ramaswamy


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JINDAL JOURNAL OF PUBLIC POLICY

AUGUST 2013 VOLUME 1 ISSUE 2

Contents

Articles

Foreword 1

The Changing Nature of the Dominant Justications that Legitimated 4the Oppression of AfricanAmericans in the United States

Kevin Brown

Left at the Margin 31V.S. Sreedhara

The Bleaching Syndrome: Skin Colour as the Basis of 40Oppression vis--vis AfricanAmericans/DalitIndiansRonald E. Hall

Inclusive Development, Civil Society and Socio-economic Rights: 64Legislative Initiatives and Judicial DecisionsS. Japhet

Law and the Loss of Livelihood: The Hawadigas (Snake Charmers) 79and Qalandars (Bear Charmers) of Karnataka, IndiaKhan Nadim Ali Haider

The Employment and Economic Advancement of 95AfricanAmericans in the Twentieth CenturyKenneth Glenn Dau-Schmidt and Ryland Sherman

Afrmative Action and Social JusticeReections 117on the Judgements of the Indian Supreme Court

Vanishree Radhakrishna


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* Senior Research Fellow, Centre for Study of Social Exclusion and Inclusive Policy,National Law School of India University, Bangalore; Email: [email protected] paper is based on an empirical study titled, Law and Loss of Livelihood: The Ha-wadiga and Qalandarof Karnataka, September 2011, jointly undertaken by the authorand Kumar Ajith. The author also wishes to acknowledge the support of Ms. Vanishree

Radhakrishna for proofreading; Babu Kowdenahalli and Rajendra Y. for assistance duringeldwork; leaders and members from the HawadigaandQalandarcommunities for sharingtheir stories and life experiences; and Professor Japhet for mentoring.

LAW AND THE LOSS OF

LIVELIHOOD:

THE HAWADIGAS (SNAKE

CHARMERS)

AND QALANDARS (BEAR

CHARMERS)

OF KARNATAKA, INDIA

Khan Nadim Ali Haider*

This paper scrutinises the impact of wildlife protection and animalwelfare laws on the social, economic and cultural life of the indig-enous and semi-nomadic communities of the Hawadigas (snakecharmers) and Qalandars (bear charmers) in Karnataka, and fo-cuses on the question as to how the law has resulted in the exclu-sion of these communities. National and international instruments

have been reviewed and testimonials of violence by the State andnon-State actors have also been collected and analysed in the pa-

per. Further, the paper critically analyses the Indian laws, viz. thePrevention of Cruelty to Animal Act, 1960, and the Wildlife(Protection) Act, 1972, which treat members of the community ascriminals because they traditionally possess, inherit, train and ex-hibit snakes and sloth bears. The paper also traces the nature andlegality of violence perpetrated on these communities by the police,

forest department and animal rights groups. The presentation ar-

gues for the need to recognise and restore their cultural rights in linewith the United Nations Declaration on the Rights of Indigenous


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Jindal Journal of Public Policy, Vol. 1, Issue 280

Peoples (UNDRIP) and also to initiate a process of reparationand rehabilitation of the community to enable them to choose their

future.

Keywords: Hawadiga, Qalandar, Snake Charmer,Bear Charmer, Indigenous Communities in India,Environment Protection, Animal Welfare, The Wildlife(Protection) Act, 1972, The Prevention of Cruelty to

Animal Act, 1960

INTRODUCTION

The Hawadigas (snake charmers) andQalandars (bear charmers) and theirtraditional professions and practices are highly integral to Indias cultureand way of life. Their lives and livelihoods start and end with snakes andbears, respectively, which are deeply associated with their identity, life,respect and dignity. In recent times, however, they have started beingconsidered as a group in conict with environment protection, wildlife,and cruelty to animal laws in India, as the law renders snake charmingand bear charming illegal. The problems of the Hawadigacommunity ofKarnataka are associated with their identity and way of life, which have

been passed on across generations and are virtually an inseparable part ofthe civilisation called India. Alienating snakes and bears from them wouldthus mean taking away their identity, life, dignity and livelihood. Entirecommunities of snake charmers and bear charmers are thus being pushedinto the arena of criminality merely through the passage of laws.

This paper deals with two primary issues: rstly, the law and criminalisationof the Hawadiga and Qalandar communities,wherein the rst layer ofexclusion is reviewed as a direct result of the wildlife protection legislation,

that is, the lawper seis exclusionary in nature; and secondly, the narratives ofboth State and non-State violence, wherein the second layer of exclusionis examined as a consequential fallout of the application of law and itsprocess.

A BRIEF COMMUNITY PROFILE

At the outset, it is pertinent to rst understand the cultural status of theHawadiga and Qalandhar communities in order to fully appreciate their

real meaning and demography as well as their legal status. Culturally,both communities are semi-nomadic and inter-religious, symbolising amix of Hindu and Muslim traditions, and are very close to the Su or


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Law and the Loss of Livelihood 81

mystic tradition. Although they consider themselves as Sunni Muslims,they also follow Hindu traditions. This is illustrated by the fact that theHawadiga charm snake, which has a very signicant and revered place

in Hindu tradition, is an integral part of the mythology associated withthe Hindu god, Lord Mahadeva (Shiva/Shankar). The Hawadigas haveexcellent magical skills and also perform magic shows on streets by usingsnakes as props in the show. They have also inherited knowledge intraditional medicine and treatment for snake-bites. On the other hand, the

Qalandar charm bear symbolises the character of Jamwanta (Bear God)of the Hindu epic Ramayana, and the Qalandhars consider themselves asthe heirs of Jamwanta. They worship local Hindu gods and goddesses,namely Butappa and Chaudeshwari Devi.TheQalandars also exhibit bear

dancing and bear wrestling, and offer amulets. Both the communities goon annual jatra (pilgrimage), which is a Hindu practice. The Hawadigas,for example, go for a four-monthjatra andtravel across Karnataka duringimportant Hindu festivals, covering prominent Hindu worship centreslike Banshankari located in the Badami block of Bagalkot district, theMailaralinga Shiva temple, which hosts a very important and popularfestival in North Karnataka; Rathyatraof Kottur; and the Shiva temple atUttara Gatri, situated in the Rane Bennur block of Haveri district, which is

very famous for its tantrictraditions.

Both these communities are numerically insignicant, as also socially andeconomically backward. Although no attempt has been made to counttheir population, community leaders estimate the size of the Hawadigacommunity as around 400 households spreading across eight districts andare largely concentrated in the districts of Mysore and Bangalore. On theother hand, the size of theQalandarcommunity is about 500 households,distributed across ve districts, with the maximum concentration in thedistricts of Bellary and Koppal. The Hawadigas are identied as an Other

Backward Class (OBC), and are, therefore, entitled to the benets of anafrmative action policy whereas the Qalandars are not identied as anOBC or Scheduled Tribes (STs) or Scheduled Castes (SCs), and are hencenot covered by the afrmative action policies. Both communities are largelypoor, uneducated and marginalised.

LAW AND CRIMINALISATION OF THEHAWADIGAAND

QALANDARCOMMUNITIES: A QUESTION OF RIGHTS AND

LEGALITYThe lifestyles of theHawadigaandQalandarcommunities are in direct conictwith laws, which term them as criminals because they handle wildlife and


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earn an income from their cultural practices of snake charming and bearcharming. Despite the fact that these communities are generally respectedand acknowledged by Indian society and are a part of Indian culture, today

they are facing marginalisation, exclusion and extinction, resulting not onlyfrom socio-economic reasons but also due to legislation. The question ofexclusion due to wildlife and animal welfare laws has been assessed fromthe standpoint of both constitutional and international human rights, andthe interpretation and implementation of laws.

The basic premise of the Constitution of India (CoI) rests on the promiseof assuring to all citizens of the country equality of status and opportunity,and social, economic and political justice under the edice of the Preamble,Fundamental Rights (FRs) and Directive Principles of State Policy (DPSP),along with the established principle that the Preamble should conform tothe FRs and DPSP,1 that is, equality of status and social, economic andpolitical justice inclusive of FRs and DPSP, and neither less nor more interms of its scope and utility. Despite the above Constitutional principlesand promises, the CoI, on the face of it, seems absolutely silent aboutthe rights and protection of the vulnerable nomadic communities like theHawadigas andQalandars.

In order to examine the issue in greater detail, one must look into the

history of constitutional development vis--vis wildlife and environmentalprotection. The year 1976 signies a landmark with reference to enviro-human rights, when a series of amendments were introduced to the veryframework of the CoI to accommodate environmental protection asa right and also to enable policy-makers to legislate on various subjectsincluding forest and wildlife conservation, and animal welfare. A newdirective has since been appended to Chapter IV of the CoI, and the Statehas been bestowed with a duty to protect and improve the environmentand to safeguard the forests and wildlife of the country.2Therefore, the

State is expected to enact law/s towards the achievement of this objective.Interestingly, a new provision comprising Fundamental Duties was alsoadded to Chapter V, and an even higher degree of duty was imposed onevery citizen as compared to the State, that is, not just to protect andimprove but also to have compassion for living creatures.3 Similarly,many new entries were included in the Concurrent List of Schedule VIIsuch as the protection of wild animals and birds4 and prevention ofcruelty to animals,5thereby empowering both the State and the Union tolegislate on these subjects.

Furthermore, municipalities have also been assigned the duty toimplement schemes related to protection of the environment and


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promotion of ecological aspects and prevention of cruelty to animals,6respectively. After a close scrutiny of the constitutional mandate, onecould easily conclude that there was a shift in the orientation of policy

and governance during the year 1976, and forest and wildlife protectionincluding animal welfare indeed started being considered as a seriousbusiness. The extent of its seriousness is reected in the fact that theprotection of the environment was made an essential and utmost dutyof everyone, including the State, local bodies and citizens. The scopeof wildlife and animal protection was also made much wider, coveringall aspects including the protection, promotion and welfare of animals.

Thus, while the history of constitutional development has been deeplyconcerned with environment and wildlife protection, the nomadic tribes

and communities, in contrast, have not been considered as a special focusgroup in the Constitution.

Rights of Indigenous People: International Standards

The United Nations Declaration on the Rights of Indigenous Peoples7(UNDRIP) guarantees all indigenous people a set of rights, a few of

which are quite relevant to the discussion here in relation to the rights ofindigenous groups such as the Hawadigas and Qalandars. The UNDRIP

expects the State to specically provide for an effective mechanism toredress, by means of restitution of their cultural, intellectual, religious andspiritual property, taken without their free, prior and informed consent,8and legal recognition and protection to lands, territories and resources.9

Further, the UNDRIP ensures a bundle of cultural rights and otherassociated socio-economic rights to indigenous communities including theright to practice and revive their cultural traditions and customs inclusiveof maintenance, protection and development of the past, present and futuremanifestations of their cultures such as the visual and performing arts.10

The Declaration enables ownership and control over land and resources,which are traditionally owned, occupied or used or acquired,11maintenance,control, protection and development of their cultural heritage, traditionalknowledge and traditional cultural expressions, as well as manifestationssuch as medicines, visual and performing arts, among other things.12Thisis further strengthened by the recognition of intellectual property rightsover such cultural heritage, traditional knowledge, and traditional culturalexpressions.13

Most importantly, the UNDRIP guarantees indigenous communities theright to maintain and develop their political, economic and social systemsor institutions; to security in the enjoyment of their own means of


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subsistence 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 means

of subsistence and development.14

Indian Law and Criminalisation of HawadigasandQalandars

India 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 regulates

various 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 acerticate of ownership; hunting;15training, exhibition of and abolitionof the performers registration for certain animals; [meting of] crueltreatment to animals; and the human use of performing animals in

certain 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 Chief

Wildlife Warden16 for getting the ownership certicate17 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 adealer19in 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 HawadigasandQalandars were legally entitled to continue their age-old customary 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 the

application of Sub-section 2 of Section 40, on the acquisition, receipt,control, custody and possession, and sale of any specied animals andanimal articles, only by way of inheritance21and by way of declaration.22


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It 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 as

well as the indigenous communities by allowing them a last and nalopportunity to declare under Section 40 of the Act,23 and abated allaction and pending legal proceedings for its violation.24The Declarationof Wildlife Stock Rules, 2003,25has, for the rst time, referred to localcommunities and recognised their right to continue the possession andcustody of wild animals. This Rule was specically designed to recognise,protect and ensure the right of local communities such as the HawadigasandQalandars in order to facilitate the declaration and certication of

wild animals. Signicant mandatory duties were also imposed on the

Chief 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, lling 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.26

The WPA prohibits hunting.27Until 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 and

wildlife trapping, but this was completely prohibited afterwards28 exceptin the case of certain specied circumstances,29 and special purposes30,

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 kraits31; dhaman (rat snake);32 Indian cobras including all sub-speciesof genus naja;33King Cobra;34and pythons35 is prohibited. Similarly, thehunting of three species of bears is prohibited, viz. the Sloth Bear;36theHimalayan Brown Bear,37and the Himalayan Black Bear.38

Meanwhile, the Parliament too enacted the PCAA to prevent theiniction of unnecessary pain or suffering on animals,39 that is, anyliving creature other than a human being.40This 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 iniction of unnecessarypain or suffering upon animals.41 It legalises and regulates the humanuse of animals for training and exhibiting,42 precisely for paid public

entertainment,43with the prior registration of the performing animal andexhibitor.44It is important to note that the performing animal in questionshould not be prohibited and restricted from exhibition and training by


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the Central Government45 or by the magistrate on a police complaintabout the cruel treatment to performing animals during their trainingand performance.46It also penalises anyone found to be treating animals

cruelly.47

The exhibition or training of bears, monkeys, tigers, panthers and lionswas prohibited and made illegal for the rst time in the year 1998.48Theconstitutional validity of Notication 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 Court49upheld the constitutional

validity of the above notication and observed that the petitioners have nofundamental right to carry on a trade or business entailing the exhibitionor trading of animals covered by the notication. 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 specied animals and theobject sought to be achieved as stated in the preamble to the Act, that is,the prevention of iniction 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 notication is not liable to bestruck down on the ground of violation of the fundamental right under

Article 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 on

Article 21 was rejected. The above order of the Kerala High Court wasupheld by the Supreme Court of India.50The latter has observed that in

the 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 notication 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 notication was discussed bythe Karnataka High Court, a ban was sought on the exhibition of allperforming animals in the state of Karnataka under the PCAA. The

Karnataka 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


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animals other than those specied under Sub-clause (ii) of Section 22 andthe Central Notication issued under the above provision and thereforecannot be extended to all animals.51

In order to understand the scope of the prohibition of training orexhibition of bears under the above notication and its application on the

Qalandarcommunity,the denition of the term exhibit under the PCAAis of utmost importance. As per the PCAA, the expression exhibit meansexhibit at any entertainment, to which the public are admitted through saleof tickets.52The requirement of the sale of ticket should be categoricallyemphasised. The scope of this denition, requirement of the sale ofticket, and the applicability of Sections 21 and 22 of the PCAA and thenotication issued under Section 22 was discussed in a writ petition beforethe Jabalpur Bench of the Madhya Pradesh High Court. Jadugar Anand, apopular magician, was charged for committing cruelty upon the bear usedin his magic show on the ground of the Central Notication r/w Section22 of the PCAA. He, however, contended that no cruelty was inicted onthe bear during the show. The High Court held that the bear was used asan exhibit, and that magic is a form of entertainment, to which the public

were admitted through the sale of tickets for the purpose of exhibition,and hence the case falls within the purview of Sections 21 and 22 of the

Act. Thus, the notication issued by respondent under Section 22 of thePCAA is applicable in this case and Jadugar Anand was rightly charged.53

Unlike circuses and Jadugar Anands magic shows, members of theQalandar community did not exhibit their show by selling tickets. Thisclearly means that the street shows of the Qalandar community arenot covered under the above denition of exhibit, and therefore theprovision under Section 22(ii) of the PCAA and the above noticationissued under the said provision do not apply to the shows held by the

Qalandars.This applies equally to the performance of street shows by the

Hawadiga community.

STORIES OF HUMILIATION, HARASSMENT, ABUSE ANDVIOLENCE

The members of the Hawadiga community are commonly subjectedto humiliation, threats, harassment and violence by the police, forestdepartment and functionaries of animal rights groups in the name ofimplementation of the two laws, viz. the WPA and PCAA. During the

course of this study, a number of incidents were reported by the membersof both communities, but for the purpose of this paper, an analysis of thenarratives by theQalandars has not been captured because by 2006, all bears


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had been completely seized from them. Therefore, this part of the paperpresents the analyses of thirty such incidents that took place during theperiod August 2008July 2011. The nature of violence ranges from threats,

verbal abuse, disruption of street shows, imposition of physical restraints,connement, and minor physical violence such as manhandling, resultingin minor injuries with no visible marks, to serious incidents of physical

violence such as beating with sticks, rods and sharp weapons, resultingin visible body marks, bleeding, cuts, fractures and bone dislocation, andorganised mob violence, among other things.

It is interesting to note that out of thirty cases, only two cases (comprisingaround 7 per cent of the total) have been reported, wherein no violence,

verbal and/or physical, was inicted on the snake charmers. This shows thegeneral attitude and behaviour prevalent towards this community. It alsoshows that the law is often misused by the very promoters and protectorsof animal rights, and implementers of the wildlife and animal welfare laws.

Out of a total number of thirty cases, physical violence was reported innineteen cases (comprising around 65 per cent of the total), includingeight cases (around 25 per cent of the total) of minor physical violenceand eleven cases of serious physical violence. Three cases of mob

violence were reported and in one such case, the snake charmer was

paraded naked with blackened face on the streets.54 Table 1 gives anaccount of the gravity of physical violence perpetrated against the snakecharmers of Bangalore.

Table 1Type of Physical Violence

Manhandling(No Visible Marks)

Visible Marks, Bleeding,Fracture

Mob Violence

Incidents Reported over the Period August 2010July2011

05 05 00Incidents Reported over the Period August 2008July 2010

03 03 03TOTAL

08 08 03Source:Kumar and Haider, 2011.

In order to further explore the issue of violence against snake charmers, itis pertinent to examine the actors who perpetrate this violence. Out of the

thirty incidents discussed here, in only one case (around 3 per cent), theoperation was independently carried out by the police alone in only onecase (comprising around 3 per cent of the total cases). In ve other cases


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(> 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 rights

groups 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 FORCE

The carrying, training and exhibiting of snakesper se are not illegal orviolative of the WPA and PCAA. The ownership of snakes or any other

wild animals is regulated and the declaration of possession and ownership,registration and certication 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 rst instance, the question of proving the legality or illegality of search,seizure, connement and restraint, and the use of physical force comesinto the picture only when the performers or snake charmers are found tobe carrying snakes and inicting 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 and

violence. 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 ve 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 case55were 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 inicted on the


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snakes 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 conne/restrain the snake charmers. The police can

only 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,56the owner of the animal can bedeprived either permanently or for a xed 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 ofcerfor examination.57

It 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 FORWARD

It can thus be concluded that though once respected, the Hawadiga andQalandarcommunities today face the perpetual stigma of criminality andcomplete loss of identity, and nd 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 around

these 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 and

Qalandars, 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 India

have 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.


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Moreover, 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 ways

of life. Despite this, why has the community not been sensitised and madeaware about the law and the process of certication 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 rights

groups 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 Qalandarcommunity, 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 justication of the useof force and violence against the indigenous communities while they are

performing 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 and

weaker 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 either

create a new dignied 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 conict 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 these

communities in line with Indias international obligations under UNDRIPis also of utmost importance. Further, the ambiguity of laws, particularlythe WPA, PCAA and the Notication of 1998, should be countered by the


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categorical exemption of the traditional communities from its ambit andby the initiation of a fresh process of stock declaration and registration of

wild 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 andafrmative 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, 1976.4 Item 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 Amendment

Act, 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.15 Section 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 specied 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.17 Section 42, WPA.18 Section 40 (2), WPA.19 Section 2 (11), WPA: dealer means any person who carries on the business of buy-

ing and selling any captive animal, animal article, trophy, uncurled trophy, [meat or speciedplant].20 Rule 2, the Wildlife (Stock Declaration) Central Rules, 1973.


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Law and the Loss of Livelihood 9321 Section 40 (2A), WPA, As amended by Section 25 of the Wildlife Protection Amendment

Act, 2002.22 Section 40 (2B), WPA, As amended by Section 25 of the Wildlife Protection Amendment

Act, 2002.23 Section 40A (1), WPA, As amended by Section 26 of the Wildlife Protection AmendmentAct, 2002.24 Section 40A (2), WPA, As amended by Section 26 of the Wildlife Protection Amendment

Act, 2002.25 Notication No. SO 445 (E), dated 18 April 2003, Union Ministry of Environment and

Forests, Government of India.26 Rule 3, the Declaration of Wild Life Stock Rules, 2003.27 Section 2(16), WPA.28 Section 9, WPA, As amended in 1991, prohibited hunting of all animals listed in Schedules

IIV of WPA.

29Section 11, WPA, As amended in 1991.30 Section 12, WPA, As amended in 1991.31 Listing No. 12(iv), Schedule IV, WPA,32 Listing 9, Schedule II, Part II, WPA.33 Listing 11, Schedule II, Part II, WPA.34 Listing 12, Schedule II, Part II, WPA.35 Listing 14A, Schedule 1, Part II, WPA.36 Listing No. 5, Schedule II, Part II, WPA.37 Listing No. 2, Schedule II, Part II, WPA.38 Listing No. 2A, Schedule II, Part II, WPA.39

Preamble, PCAA.40 Section 2(a), PCAA.41Section 3, PCAA.42Section 21, PCAA.43Rule 2(h), Performing Animals (Registration) Rules, 2000.44 Rule 3, Performing Animals (Registration) Rules, 2000.45 Section 22, PCAA.46 Section 24, PCAA.47Section 11, PCAA: Treating an animal cruellyBeating, kicking, over-riding, driving, load-

ing, torturing or causing unnecessary pain or suffering; employing any animal who is unt for

the work due to its physical condition, age, inrmity, disease, etc.; administering any injurious

drug or substance; carrying any animal in a manner causing unnecessary pain or suffering;

keeping or conning in cage or other receptacle, restricting its movement; keeping chained by

short or heavy chain or cord; failure to provide adequate food, drink or shelter; or mutilating

or killing in any other unnecessarily cruel manner amount to cruelty against animals, and are

punishable with a ne of Rs. 10 to Rs. 50 for the rst offence and Rs. 25 to Rs. 100 and/or

imprisonment up to three months for subsequent offences.48Notication 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.


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Jindal Journal of Public Policy, Vol. 1, Issue 29454Around two years back, one HawadigaSyed Ameer, along with his friend, was exhibitinga street show at Jadahalli Cross, Bangalore, when they were interrupted by a person, sup-posedly from 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 instigated

the 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 Ameers 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 610.56 Section 29, PCAA.57 Section 34, PCAA.

Reference

Kumar, Ajith and Khan Nadim Ali Haider. 2011. Law and Loss of Livelihood: The Hawa-

digas andQalandars of Karnataka, A study report published by the Centre for Study of

Social Exclusion and Inclusive Policy, National Law School of India University, Bangalore,

September.

law and loss of livelihood: snake charmers and bear charmers of karnataka, india

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