Law, Society and Dalits in India - Part 2

Karthik Navayan

Continued from here.

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The Scheduled Castes, Scheduled Tribes (Prevention of Atrocities) Act, 1989

Article 17 of Indian Constitution seeks to abolish 'untouchability' and its practice in any form is forbidden. It is basically a "statement of principle" that needs to be made operational with the apparent objective to remove humiliation and multifaceted harassments meted to the Dalits and to ensure their fundamental and socio-economic, political, and cultural rights.

Even after 5 years of the implementation of the constitution, when there was no change in the status of untouchability in the country, then the rulers recognised the necessity of a separate legislation and brought in the Untouchability (offences) Act 1955. But the act did not define what the crime is.

The government and rulers later recognized that the Untouchability (offences) Act 1955 was not sufficient to eradicate untouchability and to punish the perpetrators and brought another legislation after 21 years: the Protection of Civil Rights (PCR) Act. But there was no change in the situation of prevalence of untouchability.

It was felt that the normal provisions of the existing laws like, the Protection of Civil Rights Act 1995 and Indian Penal Code have been found inadequate to check these atrocities[13]. Despite previous legislations, the various gross indignities and offences against the Scheduled Castes and Tribes had not diminished. By recognizing these facts the Parliament passed the Act known as the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 & Rules, 1995.

The statement of objects and reasons appended to the Bill while moving the same in the Parliament, reads "despite various measures to improve the socioeconomic conditions of SCs & STs, they remain vulnerable. They are denied a number of civil rights; they are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious atrocities are committed against them for various historical, social and economic reasons." Then the government again realised that there should be a proper legislation to address the problem of untouchability and to protect the rights of Scheduled Castes and Scheduled Tribes and brought the present legislation, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The preamble of the Act also states "prevent the commission of offences of atrocities against the members of Scheduled Castes and Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offenses and for matters connected therewith or incidental thereto." So the objectives of the Act very clearly emphasize the intention of the Government to deliver justice to these communities through affirmative action to enable them to live in society with dignity and self-esteem and without fear or violence or suppression from the dominant castes.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted by the Parliament of India (Act 33 of 1989), to prevent atrocities against Scheduled Castes and Scheduled Tribes. And rules to this act were framed in the year 1995, after 5 years.

In 1950, the constitution of India abolished untouchability, but it remained; in 1955 the Indian government had brought in the Untouchability (Offences) Act, but untouchability has not gone. In 1976, the government of India had brought in the Civil Rights Protection Act, untouchability remained the same; in 1989 the Indian Government had brought in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (hereafter the Act), untouchability had remained and the same kind of the killings, burnings, rapes on the so-called untouchables are continuing. And new forms of untouchabilities are emerging in the educational and employment institutions.

There are 3 components in the Act 1) Preventive 2) Punitive 3) Rehabilitative.

1. Preventive

Atrocities on the Scheduled Castes and Scheduled Tribes take various forms – both visible and invisible. However it is the visible forms of atrocities that are defined and included in Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. Visible forms of atrocities are taking place in rural India, and invisible forms of atrocities are taking place in urban life; the invisible atrocities are a more dominant form of atrocity. The invisible kind of atrocities frequently take place in universities and other educational institutions.

Human rights organizations including Dalit organizations mostly concentrate on the protection of Dalit human rights after atrocities have taken place. No people's organization or government authorities are showing interest in implementation of preventive measures. The invisible atrocities on the Dalits can be prevented through the implementation of preventive provisions in the Scheduled Castes Scheduled Tribes (Prevention of atrocities) Act 1989.

Section '17.of the SC ST (Prevention of Atrocities) Act - Preventive action to be taken by the law and order machinery

(1) A District Magistrate or a Sub-divisional Magistrate or any other Executive, Magistrate or any police officer not below the rank of a Deputy Superintendent of Police may, on receiving information and after such inquiry as he may think necessary, has reason to believe that a person or a group of persons not belonging to the Scheduled Castes or the Scheduled Tribes, residing in or frequenting any place within the local limits of his jurisdiction are likely to commit an offence or have threatened to commit any Offence under this Act and is of the opinion that there is sufficient ground for proceeding, declare such an area to be an area prone to atrocities and take necessary action for keeping the peace and good behaviour and maintenance of public order and tranquillity and may take preventive action.

(2) The provisions of Chapters VIII, X and XI of the Code shall, so far as may be, apply for the purposes of sub-section (1).

(3) The State Government may, by notification in the Official Gazette, make one or more schemes specifying the manner in which the officers referred to in sub-section (1) shall take appropriate action specified in such scheme or schemes to prevent atrocities and to restore the feeling of security amongst the members of the Scheduled Castes and the Scheduled Tribes.'

The Ministry of Social Justice and Empowerment, Government of India has identified and listed 195 districts as atrocity prone areas in 12 states: Andhra Pradesh, Bihar, Gujarat, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Orissa, Rajasthan, Tamil Nadu, and Uttar Pradesh.

In March 2010, National Dalit Forum, an NGO, sent applications under the Right to Information Act to these 195 District Magistrates to know the implementation of preventive measures under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989.

The questions asked in the Right to Information application were:

1) Provide the list of atrocity prone areas identified in your district.

2) What are the preventive measures initiated in the atrocity prone areas?

3) Provide the information of financial resources to meet the expenses of the preventive measures, also provide the information of where the expenses have been booked, in which budget code and account number.

The response from the District Magistrates on the RTI Applications shows the pathetic condition of the situation, of the non-implementation of Preventive Measures. Out of 195 applications, only 150 acknowledgements were received; the other 45 districts magistrates/ authorities have managed not to send acknowledgements. About 20 applications were rejected saying that the preventive measures under Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989 does not come under their functions. One district magistrate from Tamil Nadu replied to the above three questions as "NIL"

80 applications were forwarded to the concerned district social welfare officers saying that it is a matter related to the social welfare department and 50 applications were forwarded to the concerned district superintendents of police saying that the matter related to law and order. 150 replies with irrelevant information were received from district magistrates/ authorities and 40 district magistrates/ authorities supplied partly relevant information.

150 district magistrates/ Authorities replied in their local language: like Tamil Nadu magistrates replied in Tamil, Karnataka magistrates replied in Kannada, Gujarat magistrates replied in Guajarati, Kerala magistrates replied in Malayalam, Rajasthan magistrates replied in Rajasthani. It is a trick of the authorities to confuse the applicant; when the application submitted is in English, they have to reply in English only.

It is really a pathetic situation that none of the district magistrates felt responsible for implementing the preventive measures under Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act 1989. And many of them were not even aware of the provision of preventive measures. Except 10 district magistrates, all have tried to escape from their liability of providing information/and implementing the preventive measures.

The District Magistrate is the Chairman of District Level Vigilance and Monitoring Committee under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989; he is responsible for identifying the atrocity prone areas and also to initiate preventive measures. It is clear that the administration and police are totally insensitive towards the protection of rights[14].

2. Punitive

The provision for punitive component in the Act is Section 4, which says "whoever, being a public servant but not being a member of a Scheduled for neglect Caste or a Scheduled Tribe, wilfully neglects his duties required to be performed of duties. By him under this Act, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year".

Section 4 is a provision in the act to punish the investigation officer/ any government authority who neglects his duties that have to be performed under this act. It means the police have to register a case against another police officer which is a very rare phenomenon. It may possible in the cases when more politically influential people are involved but it is very difficult with regard to the cases of Scheduled Castes and Scheduled Tribes. Until now not one case is reported under this section.

A bare reading of the Section 4 shows that the offences, which are punishable under this section, must have been committed by neglecting duties to be performed under the Act. So, the inference is that specifically for the purpose of an act/wilful default, committed by the Public Servant under this Act, legislature in its own wisdom has came out with punishment for the wilful negligence by the Public Servants under the Act.

But the major lacuna in the Act is that the section has not clearly defined "wilful negligence". So the crucial question is whether the process of investigation conducted, investigation report and filing of Charge Sheet within stipulated time, providing relief and compensation to the victims and implementing protective and preventive measures in respect of any duty prescribed under the Act comes under the Section 4 or not.

The experience of the survivors, activists and organizations reveals that the police and administration are adopting several ways to neglect their duties and diluting the spirit of the Act at every stage from the registration of the case. Some of these problems are as follows:

At the Level of FIR and Investigation:

1. Delay in filing the FIR.

2. Refusal in registering FIR by Police officials.

3. Writing the complaint in favour of the accused without giving necessary details and not reading it out to the complainants.

4. Cases not registered under proper sections[15].

5. Not including necessary details in the FIR (facts, figures, words, deleting the names of the accused /weapons used /accused list, their details)

6. Misleading the victims by registering case in the SHD instead of registering in the FIR.

7. Not issuing copy of FIR to the victims as per SC/ST (POA) Rules 1995.

8. Not investigating the case in time.

9. All the victims, witnesses are not covered under investigation.

10. Investigation is often being carried out sitting in the dominant caste locality or calling them to the police station.

11. Police officials are not entering all the details narrated by the victims and witnesses in the statements.

12. Victims are not provided protection during and after investigation

13. Not informing the victims and witnesses about the date and time of IO's visit.

14. Delay in providing documents (post-mortem certificate, wound certificate) to the victims.

At the level of Charge Sheet:

1. Delay in filing charge sheet[16].

2. Delay in getting approval from higher authority.

3. No corroboration between the statements collected and charge sheet.

4. Deleting of sections of SC/ST POA Act in charge sheet.

5. Depending on legal opinion to finalize (charge sheet).

6. No mechanism in judiciary to monitor filing of charge sheet.

7. Charges are framed without looking at the related corroboration (corroboration with charge sheet and FIR charges are framing).

8. Outsourcing preparation of charge sheet.

3. Rehabilitative

Section 21 (III) of the Act talks about the provision for the economic and social rehabilitation of the victims of the atrocities; it means that a victim of atrocity, including victims of atrocities for physical or psychological harm suffered as a consequence of the atrocity, shall have the right to fair and adequate relief, compensation, and rehabilitation.

But the situation is very terrible: the victims of atrocities are treated as untouchable even in the courts and offices. The Victims are not paid TA/DA/Wage during investigation, trial. And they are not paid medical expenses. The compensation and the immediate relief are not being paid according to Rules – 1995.

Keeping the above experience as base the Ministry of Home and Ministry of Social Justice and Empowerment issued several advisories between 2002 to 2006 for better enforcement of the Act and Rules. "Suitable Departmental action may be initiated against a police officer in case He or she does not register the FIR. Further, in case the police officer does not belong to SC ST, appropriate action may be initiated under section four of the Act". [No. 11011/8/2006 -PCR (Desk) – 14/03/06 MSJE; No. 24024/9/2004- SC/ST Cell-03/02/05

Hence there is a need to define the types of negligence based on the advisories issued by the Ministry of Home and Ministry of Social Justice and Empowerment and various methods that the Officials are adopting to dilute the spirit of the Act.

A study was conducted on the implementation status of SC & ST (Prevention of Atrocities) Act 1989 by the National Coalition for Strengthening the SC & ST (Prevention of Atrocities) Act and the report was released by the Retired Chief Justice of India, K.G. Balakrishnan on 18th May 2012.

The Report revealed that there is a substantial increase in cases of violence against SCs and STs. The report also highlighted loopholes in the implementation of the SCs and STs [Prevention of Atrocities] Act and argued that it has not been able to check atrocities against Dalits and Adivasis in an effective manner.

According to the report, crime rate against SCs has increased from 2.6 per cent in 2007 to 2.8 per cent in 2010. In 2010, Uttar Pradesh accounted for 19.2 per cent of the total crimes against SCs (6,272 out of 32,712) in the country. In the same year, Rajasthan reported the highest rate of crimes (7.4 per cent) against SCs compared to the national average of 2.9 per cent. And the number of crimes against STs drastically increased in 2010 to 5,885 cases and murder cases of STs alone totalled 142.

At national level, only 11,682 (34.2 per cent) out of 34,127 atrocity cases were registered under PoA Act in 2010. Of all the cases registered in 2010, investigation was completed only for 37,558 cases of the total of 51,782 cases. Charge sheets were submitted only for 26,480 cases (51 per cent) because of which even by the year end, around 14,092 cases remained pending for investigation. In 2010, of the 16,601 cases registered across the country under PoA Act for atrocities against SCs, the police closed almost 2,150 cases (13 per cent) in 2010. Meanwhile, of the 1,714 registered cases of atrocities against STs, 223 (13 per cent) were closed. The report also says that with 101,251 cases of crimes against SCs/STs (80 per cent) pending for trial by the end of 2010, no significant improvement was seen in the trial pendency rate (82.5 per cent) at the end of 2011.

Conclusion

All the above facts and non-implementation of SC & ST (Prevention of Atrocities) Act reveals that Indian society is not civil in nature towards its fellow beings. And there is no social climate that makes the majority of people feel the necessity of protecting the rights of the so-called untouchables.

The Hindu Indians still practice their ancient law. Though they live in the modern era caste is the only law for them. And there is no social acceptance for equality law, therefore there is no social practice of law in India. The constitution and different social protection legislations are one on one side and the Indian Brahmanical ideologies and philosophies which are deep rooted in the minds of Indian Hindus are on the other. Though there is written legislation and mechanism available for the protection of human rights of the Scheduled Castes and Scheduled Tribes, they all are futile when there is no acceptance from "society".

The Indian government should stop supporting Brahmanical upper castes and their casteist ideology which results in atrocities on SCs and STs, instead of making numerous useless legislations in the name of protecting human rights.

Please read the first part of this article here.

~~

References

[13] The Statement of the object and reasons for SC/ST (PoA) Act, 1989.

[14] Unpublished report of study on the implementation status of preventive measures under SC/ST Prevention of Atrocities Act, 1989, by National Dalit Forum, Hyderabad.

[15] NCRB Data 2007 reveals that 67.4% of the cases were not registered under SC/ST (PoA) Act, 1989.

[16] The State Police Department of Andhra Pradesh in response to the query raised by the Chief Justice of the High Court of AP on the PIL filed by Sakshi Human Rights Watch admitted that 14,452 cases were delayed and 3,281 cases were not charge sheeted due to delay in getting approval, legal opinion and superiors' orders. The statistics furnished by the Director General of Police shows that 1 case registered under this Act [SC and ST (PoA)] is pending investigation for the last almost six years, 4 cases are pending investigation for last five years, 18 cases are pending investigation for over four years, 31 cases are pending investigation for over three years. 190 cases are pending investigation for almost two years and 805 cases are pending investigation for last about one year.

~~~


Karthik Navayan is a human rights activist.

Illustration by Unnamati Syama Sundar.

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