By Sukanya Roy, TwoCircles.net
Kolkata: On 5 November, a three-judge bench of the Supreme Court ruled that insulting a Dalit or tribal person would not amount to an offence in itself, that could be registered under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (1989). The abused must prove that they suffered on grounds of their caste or tribal identity.
Atrocities by “upper” castes against SC/ST populations are currently at an unabated high. Since July 2020, 12 top positions, including those of Chairman and Vice-Chairman, have remained vacant in the National Commission for Scheduled Castes, a body entrusted to monitor caste-based atrocities against India’s Dalit minority and safeguard their rights and freedoms.
This year marks three decades of the existence of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (henceforth PoA Act) in India.
Adv. I. Pandiyan, Executive Director of WITNESS for Justice, a Dalit rights forum in Tamil Nadu observes, “The word “prevention” in the title of the Act is crucial to its understanding. It is not meant to have a retrospective approach towards atrocities already committed, instead ensure that they don’t happen.”
This article tries to investigate some reasons for, and effects of, the poor implementation of this Act.
A brief history of the PoA Act
The Untouchability Offences Act of 1955, was amended in 1976 into the Protection of Civil Rights (PCR) Act, under which rituals and beliefs of untouchability (as professed by the Hindu caste system) were intended to be penalised. However, the PCR Act failed to sufficiently deter casteist practices and crimes. The need for a more comprehensive law was met by the PoA Act of 1989.
The Act differentiated “atrocities” from crimes, by emphasising the special caste-based dispossession causing victims to suffer the former, and stipulated punishments against the same. However, the 90s saw a fresh spate of caste-massacres, in which the judiciary protected the dominant accused.
In the Tsundur Massacre of 1991, in which 13 Dalits were killed, the Andhra Pradesh HC acquitted all 56 who were convicted. In the Bathani Tola (1996) and Laxmanpur Bathe (1997) massacres conducted by the “upper” caste Ranvir Sena militia in Bihar, Patna HC and the civil court cited “defective evidence” or “lack of evidence”, and acquitted all 49 (combined) accused. The 1997 Melavalavu massacre victims in Tamil Nadu were also denied justice, as the 17 convicts sentenced to life imprisonment were released subsequently.
In 2015, the PoA Act was amended, envisioning an absolute no-tolerance policy towards rising caste atrocities. Apart from increased sentences to offenders, and stricter preventive and monitoring provisions, it increased punishment for public officers indulging in neglect of their duties.
Sec. 438 CrPC (bail) would not apply to offences registered under the Act. Atrocity cases were to be tried within two months of filing the charge-sheet and fought by Executive Special Public Prosecutors (not appointed by the State) in Executive Special Courts that would give priority to cases registered under the Act. Additionally, a thorough section on the “Rights of Victims and Witnesses” was added.
Controversial SC judgements
In March 2018 a two-judge bench of the Supreme Court examined the number of “false cases” filed under the Act and ruled that anticipatory bail could be granted in atrocity cases. This ruling drew sharp criticism and vehement protests from Dalit and tribal populations, other socially oppressed sections, human rights’ groups, and social activists around the country.
It was revoked in the same year after this arduous struggle, in which 11 Dalit people reportedly died.
Henri Tiphagne, Executive Director of the human rights’ organisation People’s Watch, asks, “Note that the SC did not question the veracity of cases filed under every law. Why was the concern of “false cases” so pertinent to this Act alone?” He believes that the ruling was a deliberate attempt to paint the most vulnerable sections of society as “inherent liars”.
“This betrays in no unclear terms, the deep mistrust borne by the nation’s top court towards people belonging to the SC and ST communities. The same culture of suspicion is legitimised at all other levels of society”, he told TwoCircles.net.
The recent SC judgement is a clear step in the same direction. It effectively places the burden of proving oppression solely on the oppressed person, instead of the “upper” caste perpetrators, who exist in society and thereby act, with the innate knowledge of their caste-power, and impunity given to the same.
What the official statistics say
The latest report (2019) of the National Crime Records Bureau (NCRB) reveals the widening chasm between atrocities committed and justice imparted.
Nationwide, atrocity cases against Scheduled Castes were reported at 45,935, and those against Scheduled Tribes was marked at 8,257, making it a total of 54,192 cases. The number shows a 9.5% increase from the 49,501 registered atrocity cases against SCs and STs, in 2018.
At the police level, the charge-sheeting rate for SC cases is 78.5%, and ST cases is 81.7%. During the investigation, 9,459 atrocity cases against SCs and 1,439 cases against STs were closed, due to “final report false”, “insufficient evidence”, “mistake of fact” or “no clue”, pointing at how ill-equipped the police is, to deal with cases of this nature.
Although judicial trials under the PoA are stipulated to be held within two months, courts have several thousands of cases pending from the previous year. The pendency rate is a staggering 93.8% for SC cases and 91.4% for ST cases. These cases which did manage to reach the courts after a sketchy police investigation are still left wanting justice.
Out of the dismal number of cases tried, the rate of acquittal is 68% for SC cases (more than double the conviction rate), and that in ST cases is 74% (close to triple the conviction rate). In 2019, a meagre 7,186 people were convicted of atrocities against SCs, and 1149 were convicted in ST cases.
The weak links in the chain
Several punitive and preventive measures detailed in the PoA Act are yet to be implemented, which has effectively led to the dilution of the Act and in turn, of our nation’s Constitution.
Non-registration of FIRs
According to the 2019 NCRB report, Uttar Pradesh tops the list for atrocity cases reported (11829 cases), of which the biggest chunk falls under the sections of Rape, and Assault on Women (2783 cases combined). Could one assume that a significant additional number of such cases must have gone unreported?
Throwing light on this, Naheed Aqeel, of Ekala Mahila Manch, a Lucknow-based forum fighting for the rights of marginalised women in Uttar Pradesh, says, “In my field, I can say that when Dalit women go to lodge a complaint, they are intimidated, abused, and sent back from the police station. No FIR is lodged because their complaints are not taken seriously. If an activist intervenes, there can still be a chance of an FIR, otherwise, it’s rare.”
What is further distressing to Aqeel, is the growing consciousness in the minds of “upper” castes, that the inevitable social law is that of Manusmriti (an ancient Brahmanical text solidifying caste hierarchy, and rife with derogatory preaching about former untouchables and women), even today.
She substantiates this, saying, “We run an independent business to facilitate the activities of our forum, for which we require labourers. Some of them are Brahmin. Even though the lockdown has affected them economically, they have faith, and have said out loud to me, that the days when people would “pander” to the demands of Dalits and Muslims are over”.
The police too, have proven themselves doggedly constricted by this mind-set. “Can you imagine to what extent this belief must be amplified in the minds of those “upper” castes who are not concerned about securing two meals a day?” Aqeel wonders.
Lack of adequate Executive Special Courts
Section 14 of the PoA Act empowers the State governments to set up Executive Special Courts for speedy trial of cases registered under the Act. To reverse the alarming pendency rate, Executive Special Courts would focus only on atrocity cases, and deliver justice within two months of charge-sheeting.
However, only 12 states have managed to set up these courts. Out of the total 423 districts in these states, merely 170 Executive Special Courts have come into function.
The remaining states have designated regular courts as “special courts”. These courts have to try other cases as well, which leads to the usual side-tracking of atrocity cases. The conviction percentage in Special Courts is bleak too. Figures in the 2002 Annual Report of the Ministry of Social Justice and Empowerment, estimated conviction rate at 2.3%.
Loophole permitting bail
Even though the 2018 amendment unequivocally rules out anticipatory bail provisions for cases under this Act, “notwithstanding any judgment or order or direction of any Court”, High Courts often file direction petitions in subordinate courts – an implicit instruction to consider the bail plea for the accused. Being a lower court, the SC/ST courts grant bail.
In December 2019, a ruling by the Madras HC clarified that High Courts still reserved the power to grant anticipatory bail in PoA Act cases. Adv. Pandiyan comments, “This judgement can be misused and sets a scary precedent.”
Courts at all levels sorely lack judges from Dalit and tribal communities. In 2010, Justice B.R. Gavai was the first Dalit Justice appointed to the Supreme Court after a decade. Even at the apex level, there is gross under-representation and very little understanding of Dalit and tribal interests.
Pandiyan also points out that the “scientific examination” of the bail plea is ultimately done by examining the police report, and “the police is itself biased towards victims”, which allows perpetrators to walk free.
Vigilance Committee meetings not held
Under Section 21 of the Act, Vigilance and Monitoring committees need to be set up at the district, state and national levels, to keep track of atrocities committed at various strata of society.
The 2020 WITNESS for Justice Report finds, not a single state has held the stipulated number of 4 yearly meetings, per district, in 2019.
The 2016-2017 NCSC report states that State-level Vigilance and Monitoring Committee (SVMC) meetings were convened only in 3 states. SVMCs need to be presided over by the Chief Minister of the respective state but did not make it to their agenda of welfare in the vast majority of states.
False cases against Dalits and Tribals
A lot of grassroots movements, led by tribals and Dalits in Odisha, are against anti-people ‘development’ policies that lead to displacement and environmental degradation. A well-known example is that of the Niyamgiri movement against large-scale mining by Vedanta.
Unable to identify the actual Maoist rebels, the State brands marginalised people from tribal and Dalit communities as ‘Maoists’, and lodges false cases against them. Narendra Mohanti, the State convener of Campaign against Fabricated Cases, says, “There is immense violence by police and government bodies against people protesting injustice.”
“Hundreds of innocent locals have ended up in jail. If the police itself is committing atrocities against SC and ST populations, who is going to register cases on their behalf? They also have the added burden, first, of clearing false cases against themselves”, says Mohanti.
Failure to identify atrocity-prone zones
As per Rule 3 of the SC/ST PoA Rules (1995), State governments must identify atrocity-prone areas that have witnessed casteist violence in the past. However, only 11 states have designated certain districts under this category. While Odisha has identified 16 districts as atrocity-prone, Ganjam has been left out, even though it has the highest SC population.
Madhusudan, President of the Jan Jagran Abhiyan, a campaign for Dalit rights in Odisha, told TwoCircles.net, “Untouchability is rampant in Ganjam. It is also notorious for atrocities which have a firm grounding in superstitious practices. In this lockdown, a “lower” caste man was slaughtered as a “ritual” to supposedly get rid of Corona”.
When a Dalit falls sick, dies, or loses their money, rumours start flying that it happened because a Brahmin’s curse was on them, he says. Older generations of his community seem to have internalised the idea that their voices are unimportant, and go to all lengths to avoid confrontation with “upper” castes.
Madhusudan explains lucidly, “As long as caste exists, atrocities will happen. To prevent atrocities, we must not only annihilate caste entirely but also bring ourselves out from this trap of self-stigmatisation.”
He adds that framing a good law but not building the executive, judicial or civic capacities to uphold it, is just like “giving someone a feast of mutton after taking out their teeth”.