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11 Supreme Court verdict on harassment of tribal woman

 It was believed at one time that Dravidians were the original inhabitants of India. That view has since been considerably modified. Now the generally accepted belief is that the pre-Dravidian aborigines, that is, the ancestors of the present tribals or Adivasis (Scheduled Tribes), were the original inhabitants.

This is the thesis put forward in a judgment delivered on January 5, 2011 by a Supreme Court of India Bench comprising Justice Markandey Katju and Justice Gyan Sudha Misra. This historical disquisition came in Criminal Appeal No. 11 of 2011, arising out of Special Leave Petition No. 10367 of 2010 in Kailas & Others versus State of Maharashtra TR. Taluka P.S.

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

1. Leave granted.

2. This appeal has been filed against the final judgment and order dated 10.03.2010 in Criminal Appeal No. 62 of 1998 passed by the Aurangabad Bench of Bombay High Court.

3.  Heard learned counsel for the appellants.

4. This appeal furnishes a typical instance of how many of our people in India have been treating  the tribal people (Scheduled Tribes or Adivasis), who are probably the descendants of the original  inhabitants of India, but now constitute only about 8% of our total population, and as a group are one of the most marginalized and vulnerable communities in India characterized by high level of poverty,illiteracy,   unemployment,     disease, and landlessness.

5.The victim in the present case is a young woman Nandabai 25 years of  age  belonging  to  the  Bhil  tribe  which  is  a  Scheduled  Tribe  (ST)  in Maharashtra, who was beaten with fists and kicks and stripped naked by the accused persons after tearing her blouse and brassieres and then got paraded in naked condition on the road of a village while being beaten and abused by the accused herein.

6. The four accused were convicted by the Additional Sessions Judge, Ahmednagar on 05.02.1998 under Sections 452, 354, 323, 506(2) read with Section 34 IPC and sentenced to suffer RI for six months and to pay a fine of Rs. 100/-.  They were also sentenced to suffer RI for one year and to pay a fine of  Rs. 100/- for the offence punishable under Sections 354/34 IPC. They were also sentenced under Section 323/34 IPC and sentenced to three months RI and to pay a fine of Rs. 100/-.    The appellants  were further convicted under Section 3 of the Scheduled Cases and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 and sentenced to suffer RI for one year and to pay a fine of Rs. 100/-.

6. In appeal before the High Court the appellants were acquitted of the offence under Section 3  of the SC/ST Act, but the conviction under the provisions of the IPC were confirmed.  However, that  part of the order regarding fine was set aside and each of the appellant was directed to pay a fine of Rs. 5000/- only to the victim Nandabai.

7. The prosecution case is that the victim Nandabai who belongs to the Bhil  community  was  residing  with  her  father,  handicapped  brother,  and lunatic sister.  She had illicit relations with PW9 Vikram and had given birth to  his  daughter  and  was  also  pregnant  through  him  for  a  second  time. Vikram belongs to a higher caste and his marriage was being arranged by his family with a woman of his own caste.       On 13.5.1994 at about 5.00 P.M. when the  victim Nandabai was at her house the four accused went to her house  and  asked  why  she  had  illicit  relations  with  Vikram  and  started beating her with fists and kicks.  At that time the accused Kailas and Balu held her hands while accused Subabai @ Subhadra removed her sari.  The accused Subhash  then removed her petticoat and accused Subabai tore the blouse and brassiere of the victim Nandabai.  Thereafter the accused Subabai and Balu paraded the victim Nandabai on the road of the village and at that time the four accused herein were beating and abusing the victim Nandabai.

8. At about 8.40 p.m. an FIR was lodged at Taluka Police Station and after  investigation  a  charge-sheet  was  filed.  After  taking  evidence  the learned Additional Sessions Judge convicted the  accused.

9. As already mentioned above, the conviction under the provisions of the IPC have been upheld but that under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 have been set aside.

10.We  are  surprised  that  the  conviction  of  the  accused  under  the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was set aside on hyper technical grounds that the Caste Certificate was not produced  and  investigation  by  a  Police  Officer  of  the  rank  of  Deputy Superintendent  of  Police was not done.    These    appear  to   be  only technicalities and hardly a ground for acquittal, but since no appeal has been filed against that part of the High Court judgment, we are now not going into it.

11.  However, we see no reason to interfere with the judgment of the High court convicting the  appellants under various provisions of the IPC and imposing fine on them.  In fact, we feel that the  sentence was too light considering the gravity of the offence.

12.  There is the evidence of the victim Nandabai PW4 herself and we see no reason to disbelieve  the  same. Although many of the witnesses have turned hostile, we see no reason to disbelieve the  statement of the victim Nandabai. In fact, PW9 Vikram supported the prosecution case  to some extent.    He  has  accepted  his  illicit  relations  with  victim  Nandabai  and admitted that he had a daughter from her and she was pregnant for a second time through him.  Even though he did not support the actual incident, we are of the opinion that Vikram’s evidence at least on the points admitted by him corroborates the evidence of victim Nandabai.

13. PW2 Narendra Kalamkar has proved the spot panchanama Exh. 12. He stated that the panchanama was drawn in front of the house of PW4, the victim  Nandabai.At the time of  the panchanama,Nandabai  was accompanied by the police and she had shown the entire area from her house to the place in front of the shop of PW3 Shankar Pawar.  The police seized the clothes in torn condition, produced by PW4 Nandabai. There were pieces of bangles lying in front of the house. Hence there is no reason to disbelieve PW2 Narendra Kalamkar.

14.  It  appears  that  the  accused  are  powerful  persons  in  the  village inasmuch as that all the  eye-witnesses have turned hostile out of fear or some inducement.    However, PW8 Dr. Ashok Ingale  proved the medical certificate Exh. 26 and stated that there were two contusions on the person of the victim.

15.The parade of a tribal woman on the village road in broad day light is shameful, shocking and  outrageous. The dishonor of the victim Nandabai called for  harsher     punishment,and  we  are   surprised  that the State Government did not file any appeal for  enhancement of the punishment awarded by the Additional Sessions Judge

16. It is alleged by the appellants that the people belonging to the Bhil community live in torn clothes as they do not have proper clothes to wear. This itself shows the mentality of the accused who regard tribal people as inferior or sub-humans.  This is totally unacceptable in modern India.

17.  The  Bhils  are  probably  the  descendants  of  some  of  the  original inhabitants  of  India  living  in  various  parts  of  the  country  particularly southern Rajasthan, Maharashtra, Madhya Pradesh  etc. They are mostly tribal people and have managed to preserve many of their tribal customs despite many oppressions and atrocities from other communities.

18. It  is  stated  in  the  Article  ‘World  Directory  of  Minorities  and Indigenous  Peoples  –  India:    Advasis’,  that  in  Maharashtra  Bhils  were mercilessly persecuted in the 17th   century.    If a criminal was caught and found to be a Bhil, he or she was often killed on the spot. Historical accounts tell us of entire Bhil communities being killed and wiped out. Hence, Bhils retreated to the strongholds of the hills and forests.

19. Thus  Bhils  are  probably  the  descendants  of  some  of  the  original inhabitants  of  India  known  as  the  ‘aborigines’        or            Scheduled  Tribes (Adivasis), who presently comprise of only about 8% of the population of India.  The rest 92 % of the population of India consists of descendants of immigrants. Thus India is broadly a country of immigrants like North America.  We may consider this in some detail.

India is broadly a country of immigrants

20.          While  North  America  (USA  and  Canada)  is  a  country  of  new immigrants,  who  came  mainly  from  Europe  over  the  last  four  or  five centuries, India is a country of old immigrants in which people have been coming in over the last ten thousand years or so. Probably about 92% people living in India today are descendants of immigrants, who came mainly from the North-West, and to a lesser extent from the North-East. Since this is a point  of  great  importance  for  the  understanding  of  our  country,  it  is necessary to go into it in some detail.

21.          People migrate from uncomfortable areas to comfortable areas.  This is natural because everyone wants to live in comfort. Before the coming of modern industry there were agricultural societies everywhere, and India was a  paradise  for  these  because  agriculture  requires  level  land,  fertile  soil, plenty of water for irrigation etc. which was in abundance in India.  Why should anybody  living in India migrate to, say, Afghanistan which has a harsh terrain, rocky and mountainous and  covered with snow for several months  in  a  year  when  one  cannot  grow  any  crop?         Hence,  almost  all immigrations  and  invasions  came  from  outside  into  India  (except  those Indians who were sent out during British rule as indentured labour, and the recent migration of a few million Indians to the developed countries for job opportunities). There is perhaps not a single instance of an invasion from India to outside India.

22.          India was a veritable paradise for pastoral and agricultural societies because it has level & fertile land, hundreds of rivers, forests etc. and is rich in natural resources. Hence for thousands of years people kept pouring into India because they found a comfortable life here in a country which was gifted by nature.

23.          As the great Urdu poet Firaq Gorakhpuri wrote:

“Sar Zamin-e—hind par aqwaam-e-alam ke firaq

Kafile guzarte gae Hindustan banta gaya”

Which means –

“In the land of Hind, the Caravans of the peoples of

The world kept coming in and India kept getting formed”.

24.          Who  were  the  original  inhabitants  of India  ?  At  one  time  it  was believed that the  Dravidians were the original inhabitants. However, this view has been considerably modified  subsequently, and now the generally accepted  belief  is  that  the original inhabitants of India were the  pre-

Dravidian aborigines  i.e.  the  ancestors  of  the  present  tribals  or  advasis (Scheduled Tribes). In this connection it is stated in The Cambridge History of India (Vol-I), Ancient India as follows: “It        must      be           remembered,   however,                that,      when    the         term ‘Dravidian’ is thus used ethnographically, it is nothing more than  a  convenient  label.  It  must  not  be  assumed  that  the speakers of the Dravidian languages are aborigines. In Southern India,  as  in  the  North,  the  same  general  distinction  exists between the more primitive tribes of the hills and jungles and the                civilized                inhabitants         of            the         fertile    tracts;   and        some ethnologists hold that the difference is racial and not merely the result of culture. Mr. Thurston, for instance, says: “It is the Pre-Dravidian aborigines, and not the later and more cultured Dravidians, who must be regarded as the primitive existing race…… These Pre-Dravidians  ……  are  differentiated  from  the Dravidian classes by their short stature and broad (platyrhine) noses. There is strong  ground for the belief that the Pre-Dravidians are ethnically related to the Veddas of Ceylon, the Talas of the Celebes, the Batin of Sumatra, and possibly the Australians. (The Madras Presidency, pp. 124-5.)” It would seem probable, then, that the original speakers of the Dravidian languages were outsiders, and that the ethnographical Dravidians are a mixed race. In the more habitable regions the two            elements             have      fused,   while     representatives                of            the aborigines are still in the fastnesses (in hills and  forests) to which they retired before the encroachments of the newcomers. If this view be correct, we must suppose that these aborigines have, in  the  course of long  ages,  lost their ancient languages and adopted those of their conquerors. The process of linguistic transformation, which may still be observed in other parts of India, would seem to have been carried out more completely in the South than elsewhere.

The theory that the Dravidian element is the most ancient which we can discover in the population of Northern India, must also be modified by what we now know of the  Munda languages, the Indian representatives of the Austric family of speech, and the  mixed languages in which their influence has been traced (p.43). Here, according to the evidence now available, itwould seemthattheAustricelementistheoldest, and that it has been overlaid in different regions by successive waves of Dravidian and Indo-European on the one hand, and by Tibeto-Chinese on the other. Most ethnologists hold that there is no difference in physical  type  between  the  present  speakers  of  Munda  and Dravidian          languages.          This                statement           has         been     called    in question; but, if it is true, it shows that racial conditions have become so complicated that it is no longer possible to analyse their constituents. Language alone has preserved a record which would otherwise have been lost.

At the  same  time,  there  can  be  little  doubt  that  Dravidian languages were  actually flourishing in the western regions of Northern  India  at  the  period  when  languages  of  the  Indo- European type were introduced by the Aryan invasions from the north-west. Dravidian characteristics have been traced alike in Vedic and Classical  Sanskrit, in the Prakrits, or early popular dialects, and in the modern vernaculars derived from them. The linguistic strata would thus appear to be arranged in the order- Austric, Dravidian, Indo-European.

There is  good  ground,  then,  for  supposing  that,  before  the coming of the  Indo-Aryans speakers the Dravidian languages predominated both in Northern and in  Southern India; but, as we     have      seen,     older     elements             are                discoverable      in            the populations of both regions, and therefore the assumption that the Dravidians are aboriginal is no longer tenable. Is there any evidence to show whence they came into India?

No theory of their origin can be maintained which does not account for the existence of  Brahui, the large island of Dravidian  speech  in  the  mountainous  regions  of  distant  Baluchistan  which lie  near the  western routes  into  India.  Is Brahui  a  surviving  trace  of  the  immigration  of  Dravidian   speaking peoples into India from the west? Or does it mark the limits  of  an   overflow  form  India  into  Baluchistan?  Both theories  have  been  held;  but  as  all the great movements of peoples have been into India and not out of India, and as a remote  mountainous  district  may  be  expected  to  retain  the survivals of ancient races while  it is not likely to have been colonized, the former view would a priori seem to be by far the more probable.”

(See ‘Brahui’ on Google).

25.          In Google ‘The original inhabitants of India’, it is mentioned : “A number of earlier anthropologists held the view that the Dravidian peoples  together  were  a  distinct  race.         However, comprehensive genetic studies have proven that this is not the case.

The original inhabitants of India may be identified with the speakers of the Munda languages, which are unrelated to either Indo-Aryan or Dravidian languages”

26.          Thus the generally accepted view now is that the original inhabitants of India were not the Dravidians but the pre-Dravidians Munda aborigines whose  descendants  presently  live  in  parts  of  Chotanagpur  (Jharkhand), Chattisgarh, Orissa, West Bengal, etc., the Todas of the Nilgiris in Tamil Nadu, the tribals in the Andaman Islands, the Adivasis in various parts of India (especially in the forests and hills) e.g. Gonds, Santhals, Bhils, etc.

27.          It is not necessary for us to go into further details into this issue, but the facts mentioned above certainly lends support to the view that about 92% people living in India are descendants of immigrants (though more research is required).

28.          It is for this reason that there is such tremendous diversity in India. This diversity is a  significant feature of our country, and the only way to explain it is to accept that India is largely a country of immigrants.

29.          There  are  a  large  number  of  religions,  castes,  languages,  ethnic groups, cultures etc. in our country, which is due to the fact that India is a country of immigrants.  Somebody is tall, somebody is short, some are dark, some are fair complexioned, with all kinds of shades in between, someone has  Caucasian  features,  someone  has  Mongoloid  features,  someone  has Negroid features, etc. There are differences in dress, food habits and various other matters.

30.          We may compare India with China which is larger both in population and in land area than  India.  China has a population of about 1.3 billion whereas our population is roughly 1.1 billion.  Also,  China has more than twice our land area.                However, all Chinese have Mongoloid features; they have a common written script (Mandarin Chinese) and 95% of them belong to  one  ethnic  group,  called  the  Han  Chinese.    Hence  there  is  a  broad (though not absolute) homogeneity in China.

31.          On the other hand, as stated above, India has tremendous diversity and this  is  due  to  the  large  scale  migrations  and  invasions  into  India  over thousands of years. The various immigrants/invaders  who came into India brought with them their different cultures, languages, religions, etc. which accounts for the tremendous diversity in India.

32.          Since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for all communities and sects. It was due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.

33.          Thus  it  is  the  Constitution  of  India  which  is keeping  us  together despite all our tremendous  diversity, because the Constitution gives equal respect  to  all  communities,  sects,  lingual  and  ethnic  groups,  etc.  in  the country.  The  Constitution  guarantees  to  all  citizens  freedom  of  speech (Article  19), freedom of religion (Article 25), equality (Articles 14 to 17), liberty (Article 21), etc.

34.          However, giving formal equality to all groups or communities in India would not result in genuine equality.  The historically disadvantaged groups must be given special protection and help so that they can be uplifted from their  poverty  and  low  social  status.  It  is  for  this  reason  that  special provisions  have been made  in our Constitution in Articles 15(4), 15(5), 16(4), 16(4A), 46, etc. for the upliftment of these groups.                Among these disadvantaged groups, the most disadvantaged and marginalized in India are the Adivasis (STs), who, as already mentioned, are the descendants of the original inhabitants of India, and are the most  marginalized and living in terrible poverty with high rates of illiteracy, disease, early mortality etc. Their plight has been described by this Court in  Samatha     vs.          State of Andhra Pradesh and Ors. AIR 1997 SC 3297 (vide paragraphs 12 to 15). Hence, it is the duty of all people who love our country to see that no harm is done to the Scheduled Tribes and that they are given all help to bring them up in their economic and social status, since they have been victimized for thousands of years by terrible oppression and atrocities.     The mentality of our countrymen towards these tribals must change, and they must be given the respect they deserve as the original inhabitants of India.

35.          The bravery of the Bhils was accepted by that great Indian warrior Rana Pratap, who held a high opinion of Bhils as part of his army.

36.          The injustice done to the tribal people of India is a shameful chapter in  our  country’s  history.  The  tribals  were  called  ‘rakshas’  (demons), ‘asuras’, and what not.          They were slaughtered in large numbers, and the survivors and their descendants were degraded, humiliated, and all kinds of atrocities inflicted on them for centuries.  They were deprived of their lands, and pushed into forests and hills where they eke out a miserable existence of poverty, illiteracy, disease, etc.       And now efforts are being made by some people to deprive them  even of their forest and hill land where they are living, and the forest produce on which they survive.

37.          The well known example of the injustice to the tribals is the story of Eklavya  in  the  Adiparva  of  the  Mahabharat.                Eklavya  wanted  to  learn archery, but Dronacharya refused to teach him, regarding him as low born. Eklavya then built a statue of Dronacharya and practiced archery before the statue.  He would have perhaps become a better archer than Arjun, but since Arjun was Dronacharya’s favourite pupil Dronacharya told Eklavya to cut off his right thumb and give it to him as ‘guru dakshina’ (gift to the teacher given  traditionally  by  the  student  after  his  study  is  complete).                In  his simplicity Eklavya did what he was told.

38.          This was a shameful act on the part of Dronacharya.  He had not even taught Eklavya, so what right had he to demand ‘guru dakshina’, and that too of the right thumb of Eklavya so that the latter may  not become a better archer than his favourite pupil Arjun?

39.  Despite this horrible oppression on them, the tribals of India have generally (though not invariably) retained a higher level of ethics than the non-tribals in our country.   They normally do not  cheat, tell lies, and do other misdeeds which many non-tribals do.  They are generally superior in character to the non-tribals.  It is time now to undo the historical injustice to them.

40. Instances  like  the  one  with  which  we  are  concerned  in  this  case deserve total condemnation and harsh punishment.

41.With these observations the appeal stands dismissed.

…………………………..J. (Markandey Katju)

………………………….J. (Gyan Sudha Misra)

 

New Delhi;

5th  January, 2011