Over half a century after the Indian Constitution outlawed untouchability, two special Acts to enforce it continue to be subverted. While the police routinely makes a mockery of law, the role of the judiciary leaves much to be desired
Every hour two Dalits are assaulted,
Every day three Dalit women are raped,
Every day two Dalits are murdered and two Dalit houses are burnt in India….
(Report of the Ministry of Welfare of the Government of India, 1992-1993)
Indian democracy, known worldwide for a Constitution that does integral notions of human rights and dignity proud, has aged, allowing persistent and systemic, often brutal and violent, rights violations. These violations cover a wide trajectory from the violations of the rights of the individual – child to adult – related to the State, family and community, to rights violations experienced by groups that are either socially, politically, economically or religio-culturally marginalised and/or discriminated against. Violations that these groups experience is often both historical and traditional as much as fluid and evolving and often experienced from a set of powerful and well-entrenched non-State actors ably aided by agents of the State. When sections of those marginalised and oppressed organise and articulate themselves into demanding their rights, violence, read ‘atrocities’, against these sections are redoubled, as tools for punitive subjugation.
If, at an international level, this recognition that rights violations can be experienced by the individual as also by groups so positioned within and without state boundaries found expression in several covenants, laws and charters after the first Universal Declaration of Human Rights (UDHR), back home our first realisation on this front came with the enactment of the Protection of Civil Rights Act in 1955. Article 17 of the Constitution is that provision of our constitutional mandate through which untouchability was abolished and its practice in any form forbidden. Despite clear and specific constitutional provisions guaranteeing every individual’s right to a life of dignity, equality and non-discrimination, the shameful existence of caste-based discrimination and denials made this specific articulation on untouchability a necessity at the point of time when the Constitution was drafted.
Five years later, the Protection of Civil Rights Act, 1955 was enacted in order to enforce this constitutional provision. The provisions of this Act extended to the whole of India. Thirty-four years later even these enactments were found at the ground level to be inadequate. In order to check and deter crimes against Dalits and Adivasis, the Scheduled Castes and Scheduled Tribes, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was brought into force with effect from January 30, 1990 (forty years after we gave ourselves the Constitution).
Its main objective was "to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto." The provisions of the Act extend to the whole of India except the state of Jammu and Kashmir. Comprehensive rules were also notified under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 on March 31, 1995, which among other things provide for immediate relief and rehabilitation to the affected persons through the district administration. The provisions of these Acts are meant to be implemented by respective state government/union territory administrations and fifty per cent central aid is provided to ensure the implementation of all provisions.
Fifteen years after its enactment, nationwide studies show that while this legislation has provided a critical tool for the social and political mobilisation of Dalits, an insensate State and government machinery has resulted in poor implementation of this Act. Moreover, a concerted backlash from a society and State that staunchly refuses to accept the reality of caste-driven crimes seeks to dilute registration of crimes under this Act as ‘normal’ Indian Penal Code (IPC) crimes. It is time that public stock is taken of the hurdles being put in the way of the implementation of the Atrocities Act.
Specific provisions under this legislation were enacted to ensure that certain crimes are taken cognisance of and recorded as caste-based crimes and that for these, stringent punishment and a relief and rehabilitation package for the victim complainant is ensured. Section 4 of the Act specifically relates to penal provisions to be invoked if a police official or any government official fails to perform his/her duty in taking cognisance of the offence or investigating it thoroughly. Despite many studies that have established before various regimes that officers have violated this provision, not only has no action been taken, but in fact policemen have been rewarded with promotions for violating these provisions of the Atrocities Act. (See accompanying story on Gujarat and Andhra Pradesh).
It is section 3 under chapter II of the Atrocities Act that gives legislative teeth to the phenomenon of racist caste crimes. It is this section that describes and defines not simply the crimes committed against certain sections of the population (SCs and STs) but positions them for what they are, as caste crimes committed in the context of the existence of caste-based discrimination. It is this section that outlines specifically a crime under section 3(1) of the Atrocities Act as that which "forces a member of a SC or ST to drink or eat any inedible or obnoxious substance" (this in the context of SCs even today being forced to drink urea and human excreta); or under section 3(iii) "forcibly removes clothes from a person/member of the SC or ST… or parades him/her naked…"; or section 3(iv) "wrongfully occupies or cultivates land owned by or allotted to, or notified by a competent authority…"; section 3(xi) "assaults or uses force on any woman belonging to SC or ST with intent to dishonour or outrage (her) modesty".
For the first time, this Act specifies the atrocities suffered by SCs and STs, such as the deprivation of their land rights, bonded labour, forcible eviction from their homes, coercion during elections, gender violence against their women and protection against malicious prosecution.
Ironically, however, detailed and widespread studies on this law conducted in Gujarat, Andhra Pradesh and other parts of India show distinct and disturbing trends behind the non-implementation of the Atrocities Act. A combination of factors, many based on caste-driven bias, demonstrate that due to the conduct of investigating officers (policemen) and the prosecutors (advocates appointed by state governments to prosecute the offences under this Act) who allow technical lapses in both the investigation and prosecution, offences are often left unprosecuted under the Atrocities Act while the accused is given less serious and less stigmatised punishment under the IPC and Criminal Procedure Code (CrPC). The judiciary thus expends much energy trying to discern whether or not the offence was a caste crime, leading to a further dilution of these acts.
Detailed and widespread studies on this law conducted in Gujarat, Andhra Pradesh and other parts of India show distinct and disturbing trends behind the non-implementation of the Atrocities Act.
Whether in Maharashtra, Gujarat or Andhra Pradesh, judicial pronouncements in lower and higher courts often dismiss cases under the Atrocities Act on technical grounds. What judges overlook in this process is that the Legislature has already clarified that the term "atrocity" denotes an offence under the Indian Penal Code committed against SCs and STs by persons belonging to communities other than SCs or STs. The necessary mens rea (motive) is therefore established with the offence itself and the communities to which both victim and perpetrator respectively belong, not on the court attempting to delve into the very mind of the accused and discern to what extent the atrocity was committed solely because the victim was a SC/ST.
The significance of the resultant judicial dilution of the crime – whether through failure of investigation or prosecution – is that the racist element in these crimes gets diluted. A failure to closely analyse this trend can actually make the record books show that, in fact, caste crimes (atrocities under this Act) are mere propaganda, not factual reality. Those offences that are prosecuted and dealt with judicially look, on our records, like simple criminal acts not actions resulting from deep-rooted and widespread caste and social sanction.
Apart from a centuries’ old tradition of caste crimes, over the past three decades or so, specifically since the ’80s, brutal pogroms against groups belonging to certain religious communities within India have become a tragic recurrence, enjoining caste atrocities and crimes as organised mass crimes in the life of the Indian nation.
These bouts of concentrated violence have had serious genocidal traits. There has been systemic and vicious, even high-level, preparation and pre-planning behind these genocidal pogroms (involving those in power and even the State), active verbal and written demonisation through hate propaganda, targeting of women belonging to these communities, large scale and brutal extermination along with economic targeting and religio-cultural desecration. The disturbing emergence of this phenomena has thrown open a widespread debate on the need for another law that addresses genocidal mass crimes (see Communalism Combat, Draft Bill, September 2004).
While this debate and cry for such a legislative enactment gains momentum, as it should, a close look at our track record on implementation of other such legislation deserves attention. The faulty registration of FIRs, poor investigation of the crime, and the pathetic conduct of public prosecutors, apply more acutely to cases under the Atrocities Act and are therefore also likely to affect those crimes committed against religious minorities. They are also the factors responsible for the failure of the criminal justice system as a whole. Specifically, while a special legislation that pinpoints accountability and punishment on officials of the Indian State for allowing genocidal pogroms – also tracing this accountability to the top man in the chain of command when mass crimes result – is the need of the hour, this special legislation needs to be backed by urgent structural and administrative reform in the Indian police force to give teeth and meaning to the new law.
Illustration: Amili Setalvad
Registration of FIRs
The deliverance of justice begins with the registration of a first information report, an FIR. The time factor is vital in lodging a meticulously documented FIR and any inordinate delay may prove detrimental both for effective investigation and prosecution. Thus the endeavour should be to ensure that the FIR is registered at the police station so that the investigation begins at the earliest. Rule 1 (2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 also provides that the superintendent of police shall ensure that the FIR is registered in the book of the concerned police station and effective measures are taken to apprehend the accused. In case registration of the FIR is denied by the police officer on duty, such an officer, if not being a member of a Scheduled Caste or a Scheduled Tribe, can be prosecuted under Section 4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, for wilful neglect of duties required to be performed by that officer under the Act. This rarely happens.
Pendency of cases
According to the Union Ministry of Social Justice and Empowerment, out of 138,484 cases (including brought forward cases) in the courts during the year 2003, the cases pending in the courts at the end of the year numbered 117,678, which implies that 84.97% cases were pending in the courts. Once again, the failure of justice to SC and STs is linked to the widespread pendency of cases in general.
Though the state governments of Andhra Pradesh, Bihar, Chhattisgarh, Gujarat, Karnataka, Madhya Pradesh, Rajasthan, Tamil Nadu and Uttar Pradesh have set up exclusive special courts with the intention of conducting trial of cases as required under the Act, the data available with the central government for the year 2002 in respect of the exclusive courts in the states of Bihar, Chhattisgarh, Gujarat, Karnataka, Madhya Pradesh, Rajasthan and Tamil Nadu indicates that the pendency of cases in these courts varies between 56.55% (in Rajasthan) and 88.76% (in Bihar). Likewise, the conviction rates vary from 01.86% (in Gujarat) to 29.20% (in Madhya Pradesh). Since the pendency of cases in the exclusive courts is very high, it is difficult to conclude that the exclusive special courts are proving to be fast track courts serving the ends of justice.
Low rate of convictions
According to Union Government figures, though the number of cases ending in conviction by the courts under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 marginally increased from 1,241 cases (10.49%) in the year 2000 (when a total of 11,237 cases were disposed of by the courts) to 2,694 cases (11.04%) in the year 2003 (when a total of 19,858 cases were disposed of by the courts); yet the conviction rate is far less than that in case of IPC cases i.e. 40.80% (Source: National Crime Records Bureau, Ministry of Home Affairs, ‘Crime In India’ Report for the year 2001. The Central Vigilance Commission states that conviction rates for criminal cases are just six per cent – 2001).
Role of public prosecutors
It is important that the public prosecutors ensure both timely and effective handling of the prosecution case. For this it is necessary to strengthen the institution of special public prosecutors with appropriate remuneration/fees paid to them, so that they are motivated to take up cases effectively, which has a bearing on the end result of the case.
In six recent cases from the state of Maharashtra relating to gender violence against women victims belonging to the SCs, cases were summarily disposed of at the lower level due to the questionable conduct of the special public prosecutors (A special survey on the Atrocities Act in Maharashtra will feature in a forthcoming issue of CC).
The special public prosecutors appointed under this Act are required to play a very important role to ensure successful results in the case. But as in other cases related to caste and communal crimes, the abdication of the role of the special public prosecutor further disables the implementation of this Act. More than ever the role of special public prosecutors and their conduct require transparent audit before the people. It is the experience of groups attempting to get provisions of this Act implemented that the long pendency of cases and failure of the PPs to interact with the victim and investigate the atrocity/offence dilutes the offence and stymies the prosecution case.
Public prosecutors do not even contact the complainant till he enters the witness box. As a result, the poor illiterate complainant experiences isolation from a system meant to guarantee him/her justice.
The enforcement of the Atrocities Act is not mandatory – It is voluntary. Thus, non-implementation of the provisions of this Act does not amount to an offence. One can well imagine the consequences when the public prosecutor, instead of making submissions for strict compliance of the provisions of the Act and convicting the accused for an offence under the Act, behaves totally contrary to the provisions of the Act.
Role of senior policemen
The Atrocity Act has many provisions that hold the police and district administration responsible for creating a climate under which the atrocities committed under the provisions of this Act can be effectively prosecuted. Rule 8 of the Atrocity Act, Rules – 1995 has provided for a police protection unit under the control of special IG, police. The duty of the unit is to investigate the negligence of state government employees in the implementation of the Act. To date this unit has not taken any suo motu notice of any such non-implementation in most states in the country.
Senior officers at the level of district superintendents of police in many states have often been found responsible for criminal negligence under the Act and been indicted by courts for such criminal negligence. The accompanying study on Gujarat and the judgements delivered under the Act in that state shows that it is the district SPs who have been squarely responsible – the responsibility for the effective enforcement of the Atrocities Act at the district level lies with the district superintendents of police of the districts concerned. As per the mandatory provisions contained in Rule 7 (1) and (2) of the Atrocities Rules of 1995, district superintendents of police are required to appoint subordinate officers not below the rank of DySp as investigating officers to investigate offences under the Act.
Rule 7 of the Atrocity Rules under the Act framed in 1995 was specifically enacted to ensure responsibility in the appointment of investigating officers under the Atrocities Act. The reasoning behind asking a senior level officer to not merely investigate the alleged offence under the Act but also ensure that a special government notification is made endorsing his appointment has to do with specific abilities of officers chosen to investigate such crimes based on past records. Rule 7 states that such an officer is appointed "after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it on the right lines within the shortest possible time."
Moreover, they are also required to see that the investigating officers so appointed undertake investigation on a priority basis and complete the same and submit their report to the DySp within 30 days. Further obligation on the part of DySps is that they should certify such reports and forward the same immediately to the DGP.
Despite such clear and mandatory provisions, the DySps continue to entrust investigation to police officers of the level of head constable, police sub inspector or police inspector and have often certified defective investigation reports prepared by the unauthorised investigating officers and produced such reports in the courts. Such defective reports are even forwarded to the DGP by the district SPs!
Responsibility of the district administration
The district magistrate/district collector and the district superintendent of police are enjoined under Rule 12 (1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, to visit the place of occurrence of atrocity to assess the loss of life and damage to property and draw a list of victims, their family members and dependents entitled for relief. Government and non-governmental studies reveal that the administration does not fulfill this legally required function.
Besides, Rule 12 (2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 provides that the district magistrate or the sub divisional magistrate or any other executive magistrate shall make arrangements to provide immediate relief in cash or in kind or both, to the victims of atrocity, their family members and dependents according to the scale as provided in the Rules. Despite funds for such relief and rehabilitation claimed to be disbursed by the central government, figures show that payments are not made out swiftly, violating the provisions of this Act.
The law provides for a quarterly review of the implementation of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the nodal officer with district magistrates and superintendents of police in accordance with Rule 9 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995.
In accordance with Rule 9 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, nodal officers for coordinating the functioning of district magistrates and superintendents of police or other authorised officers have been nominated in the states of Andhra Pradesh, Assam, Bihar, Chhattisgarh, Goa, Gujarat, Haryana, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Nagaland, Orissa, Punjab, Rajasthan, Tamil Nadu, Tripura, Uttar Pradesh, Uttaranchal, West Bengal, Chandigarh, Daman & Diu, Dadra & Nagar Haveli, Delhi and Pondicherry. Yet widespread atrocities continue and the non-implementation of the Act is the norm rather than the exception. This is largely due to utter lack of transparency and public attention given to their functioning.
Again, according to details available with the central government, the State Level Vigilance and Monitoring Committees under the chairpersonship of the chief minister and district level Vigilance and Monitoring Committees in accordance with Rule 16 and Rule 17 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 have been set up in the states of Andhra Pradesh, Assam, Bihar, Chhattisgarh, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Nagaland, Orissa, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh, Uttaranchal, Dadra & Nagar Haveli, Andaman & Nicobar Islands, Daman & Diu.
Annual reports under the Protection of Civil Rights Act, 1955 and the Prevention of Atrocities (Scheduled Castes and Scheduled Tribes) Act, 1989 are meant to be tabled in both houses of Parliament. The last annual report under each of these Acts tabled was related to the year 2002. The fact that this is three-year-old data and also that Parliament spares scant time and attention on social justice and resultant atrocities, has rendered this exercise, too, limited if not redundant.
The Indian State, despite its constitutional mandate and obligations, aided by a limping criminal justice system resistant to democratic transparency and reform, has failed not simply to implement the rule of law in general, but has, with relation to our marginalised and weaker sections, failed in these obligations completely.
Women, Dalits, Adivasis and religious minorities have reason enough to specifically charge sheet the Indian State.
An honest stocktaking of this failure in our sixth decade as a republic may provide some answers. Can social justice or social transformation be ensured without a staunch adherence to the rule of law?
Archived from Communalism Combat, March 2005 Year 11 No.106, Cover Story 1