A K Biswas
(First published in ‘Mainstream Weekly’ in September 2010)
Part I
“If someone takes someone’s life (deliberately and not accidentally) then he forfeits the right to his life”.
~ John Stuart Mill
The judgment delivered by a Division Bench in quadruple murders of members of the Bhotmange family, village Khairlanji, district Bhandara in Maharashtra left everyone with a sensitive mind shocked and dismayed. Surekha Bhotmange and her 18-year-old daughter and two sons, including one who was disabled, were brutally murdered by an upper-caste mob on September 29, 2006.
The Bench concluded that the accused, who were sentenced to death by the District and Sessions Court, Bhandara, were not driven by hatred against the Bhotmange family members, who were Scheduled Castes. The High Court held that the accused took revenge! This sounds like a joke widely prevalent in pre-independence India. The bureaucracy often termed starvation death as death due to malnutrition.
Justice and fairness of treatment for the victims belonging to the socially disadvantaged is practically non-existent in India. In denying justice, very sound and cogent reasons and arguments couched in ceremonial legalese are advanced on behalf of the aggressors to satisfy analytical quest. However, the caste system, needless to note, prompts discrimination, which undoubtedly is the root cause for denial of justice to the Dalits and adivasis. Khairlanji is a case in point.
The dominant upper castes did not allow the Bhotmange family to build a pucca house, though they were financially well off. Was this out of hatred or revenge? Surekha, wife, and 18-year-old Priyanka, daughter of Bhaiyyalal Bhotmange, gave evidence in a case of atrocities against a fellow Dalit, Siddharth Gajabhiye of a neighbouring village resulting in the arrest of a few OBC accused. Soon out on bail, they eliminated the entire family in broad daylight. Fleeing home, Bhaiyyalal alone escaped death. Six of the accused had, noted the court, “removed the clothes of Priyanka before disposing of her severely injured dead body and thereby wanted to get satisfaction to their sexual eyes at such circumstances”. Almost every inch of her body bore marks of bruises; nonetheless the court held that the accused had no intention to “dishonour or outrage her modesty”. And the Division Bench reversed the death sentences for the accused.
Part-II
Prevention of Atrocities Act (POA) observed More in Violation: Dalit Hatred Foundation for pan-Indian Hindu Solidarity and Unity
Oversize hatred against the Dalits provides the commonest pan-Indian thread for unity and solidarity among the Hindus. The former’s efforts to move up in life through hard work and perseverance is viewed with strong distaste, if not abhorrence, and therefore thwarted. An instance is cited from the highland of culture—West Bengal. A Lodha tribal girl, Chuni Kotal, graduated through thick and thin. Several years of efforts thereafter did not secure her a job, though the State Government all along tomtomed shining achievements in social development aimed at uplift of the SCs and STs. She ultimately enrolled for an MA degree in Anthropology in Vidyasagar University, Midnapur. One of her teachers, Falguni Chakraborty, used to taunt and humiliate the Lodha girl inside and outside the classroom, seminars and group discussions, calling her as one of a criminal tribe! She lodged complaints against him to the Vice-Chancellor of the University. Her grievances went unheeded for over two years for reasons not known. Driven to desperation by the tormentor, the forlorn girl committed suicide on August 16, 1992, after three agonising years in the University. No case under the POA was instituted against the accused. The country is, however, loudly told every now and then that the feeling of caste or tribe does not exist there, a notion peculiar to that land and breed of rulers in politics and administration.
An Enquiry Commission with a retired judge of the Calcutta High Court, Justice S.S. Gangopadhyay, declared:
On a consideration of all the materials on record we are constrained to hold, therefore, that the allegations brought against Falguni Chakraboraty by Chuni Kotal were not sustainable and further that Falguni Chakraborty never practised nor he had any reason to discriminate against Chuni simply because she was a Lodha. It may be that on occasions Falguni Chakraboraty took Chuni to task for her late or non-attendance or for some such reasons. These were mere trivialities which occur as a matter of course between the teacher and the taught without any personal involvement from either side.
These trivialities were blown big beyond all proportions to transform them into items of the petition of complaint. On the findings arrived by us, we conclude that the behaviour meted out by Falguni Chakraborty was not as to cause intense mental pain to Chuni so as to break her heart and lead her ultimately to commit suicide.1
The Commission exonerated Falguni Chakraborty of all charges. White as lily and pure as morning dew, the accused walked free with his head high and reputation unsullied.
Part-III
Crime-blindness a Peculiar Disease if Dalits and Tribes are Victims
Dr B.R. Ambedkar had bemoaned that Hindus have no appreciation for merit. There is, however, appreciation of merit of caste-men only. It seems the Hindus do not see the crimes of their caste- men too. In other words, they are blinded by prejudice to see the atrocities by upper-caste men on Dalits. And administration of justice too is a far cry, if Khairlanji suggests anything. One is compelled to recall the verdict handed down by Justice Raouf Abdel-Rahman of Kurdish origin, who tried, convicted and finally sentenced Saddam Hussein to death. The judge was “born in the Kurdish town of Halabja, where 5000 residents were killed in 1988 after Saddam’s forces launched a chemical gas attack on the town in the deadliest chemical weapons attack since the First World War,” reported The Sunday Times, London, March 16, 2007. No Sunni (Saddam was a Sunni) could deliver justice to the Kurds.
The POA stands virtually thrown to the trash-can by a nexus dominating India’s socio-political-administrative and judicial scenes. The alienation of the Dalit, if not already complete, may not take much time to reach that dead-end. In common with the adivasis, they are allowed to survive but not to prosper. Their growth and affluence, if any, is eyesore to their non-Dalit neighbours. A Dalit in tattered cloth, an emaciated frame with illness of every description, marked by ravages of poverty, would immensely gratify the ego of the dominant classes. Dalit and tribal representatives in Parliament and State Assemblies are voiceless. They are afraid to ventilate their views for their communities even in their peril, lest their views hurt the dominant ego. Dalits elected to legislative bodies, States or Union are spineless animals, thanks only to the system of joint electorates, a historical gift (or curse?) of the Poona Pact in 1932. At this rate certainly the ghost of Ramsay Macdonald may not be far off to emerge from his graveyard and revisit the accursed country for the liberation of the enslaved souls. And such demands might be heard sooner than later for grant of separate electorates to tear off the elastic docility of the adivasi and Dalit MPs and MLAs.
Part-IV
What are the Offences for Punishment under the POA?
The verdict says that no caste hatred provoked the Khairlanji massacres nor did the victim dwell on it in the FIR nor deposed before the trial court. Hatred is not a condition precedent for constituting an offence under the POA. Section 3 of the Act provides punishment for offences of atrocities as follows:
“(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,
(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substance;
(ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighborhood;
(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity;
(iv) wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred;
(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water;
(vi) compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do ‘begar’ or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by the Government;
(vii) forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law;
(viii) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe;
(ix) gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe;
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonor or outrage her modesty;
(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe uses that position to exploit her sexually to which she would not have otherwise agreed;
(xiii) corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Caste or the Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used;
(xiv) denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to;
(xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”
If one is mentally retarded or a congenital idiot, he might fail to appreciate these provisions. DNA, a reputed Mumbai daily, reported on July 15, 2010: “The High Court maintained the lower court’s ruling that there was no evidence to prove the existence of caste hatred. On the contrary, the court relied on the witnesses and evidence on record to say that this was a case of revenge killing.” Such approach goes against the very grain of section 3 of the POA. The Sessions Court judgment in September 2007 took a plea that the complainant “had not mentioned anything about the casteist abuses by offenders against his family in his initial complaint and had failed to voice it during his testimony”. Again the very attitude, exposing complicity at various levels, is repugnant to the provision of law. It is a sad experience in general that the police does not entertain an FIR if the victims of atrocities are Dalits and tribals and, if at all, they would not invoke the provisions of POA. The essential condition precedent for action under POA is that the perpetrators of atrocities are members not belonging to Scheduled Caste or Tribes, whereas the victims are either SCs or STs.
Weren’t the Sessions Court free to elicit information on the caste angle by seeking information and to give a thorough dressing down to the SPP and others for failure thereof? Courts are known to entertain news report suo motu for initiating judicial proceedings.2
Part-V
Ujjwal Nikam, a Trojan Horse appointed Special Public Prosecutor of Khairlanji Massacres
THE Maharashtra Home Minister R.R. Patil, on a visit to Nagpur, had suo motu engaged Ujjwal Nikam as the Special Public Prosecutor (SPP) for the Khairlanji massacre case that propelled Dalits, their sympathisers and human rights activists to launch a global campaign from Tokyo to Washington; Sydney to The Hague for justice. The campaigners, who staged demonstrations to this end before Indian embassies abroad, never demanded engagement of Nikam as the SPP. A characteristic feature in the case ab initio is that the caste angle involving the accused and their victims was deliberately sidetracked or over-looked in the FIR, investigation, prosecution and judicial appreciation as also in the verdict. Six of the convicts were sentenced to death and two to life imprisonment by the District and Sessions Court.3 The Bombay High Court commuted the death setntences of the six convicts to life imprisonments. Tracing the progress of the case, DNA observed that the initial lapse was in the police investigation. It further stressed that “while the Dalit groups continue to decry the attack as caste violence, the fact is that the prosecution could not bring it on record before the court”.4 Several Dalit groups at home too championed the cause of justice for the Bhotmange family. In a letter dated November 12, 2007 to the then Chief Minister, Vilasrao Deshmukh, Khairlanji Action committee had called attention to the callousness of the Special Public Prosecutor (SPP) Nikam in presentation of evidence. It stated:
The basis of this crime, that is, casteism, is not highlighted in the evidence adduced by the prosecution. It seems the case is being treated by Nikam, SPP, as a mere murder trial. The basis of all that happened in Khairlanji is casteism and this must be emphasised in all its nakedness. That will only describe the crime in the correct perspective.
Contrary to the above, we have observed that Ujjwal Nikam, SPP, has mitigated the edge of casteism. This becomes clearer if you go through the depositions of [survivor] Bhaiyyalal Bhotmange and more particularly [witness] Siddharth Gajabhiye. Nikam has not asked vital questions to both the witnesses regarding the land dispute, house destruction, the abuses and vulgar gestures made by [acquitted accused] Purushottam Titarmare and [convicted accused] Jagdish Mandlekar to [deceased victim] Priyanka. The prosecution should have brought this on record.5
The Maharashtra Government seems to have thrown this important letter to the dustbin. Any government in India disdainfully treats letters, if any, addressed by underprivileged communities. The SPP, Nikam, without any shadow of doubt, is guilty of dereliction of duty and breach of trust. He has favoured the accused and deliberately acted against the interest of the victims, exposing a nexus, blessed by political hierarchy.
Bhalchandra Mungekar, former Vice-Chancellor, Bombay University, as also former Member, Planning Commission, observed very aptly: “The reversing of the death penalty and not considering the case under the Atrocities Act is absolutely unjust. The ruling will encourage the perpetrators of the crime and this would render the Act meaningless.” On the other hand, an American-born Indian writer, scholar and Dalit activist, Gail Omvedt, held that the verdict was proof that special Indian courts should tackle cases of atrocities separately. “Most of the courts in India are not sensitive to instances of atrocities on Dalits, women and other minorities. There is a need for reservation of courts to tackle these issues. Here was a case where a Dalit family was massacred by members of the upper caste, and yet the verdict was not just”.6 These observations articulate the feelings and aspirations of the Dalits pithily.
Tailpiece
A British barrister, named Fuller, with roaring legal practice in Agra, had slapped one Katwaroo, a Dusadh from the Saran district of Bihar, in 1876. He fell down on the ground and died in a few minutes. He was the barrister’s syce (coachman). He had enlarged spleen in a morbid condition. Following an enquiry by an ICS officer, Leeds, who was the Joint Magistrate, Agra, Fuller was prosecuted u/s 323 IPC (simple injuries), convicted and fined Rs 30 to be given to the deceased’s wife. The matter rested there.
Lord Lytton, the Governor-General of India, one morning read a reference to it in a Calcutta newspaper alleging that the colonial rulers were biased and insensitive to the Indians, who are physically abused and tortured by the English-men with impunity in general. Katwaroo’s murder was cited as a case in point. The supreme authority immediately summoned the case records from the Governor of the North-Western Provinces (now Uttar Pradesh) along with the comments of the Chief Justice, Allahabad High Court. Highly displeased with the miscarriage of justice and inadequacy of punishment awarded to the barrister coupled with the apathetic attitude of the local government and High Court, the Viceroy, Lytton, indicted them all in the following order:
“The Governor-General in Council cannot but regret that the High Court should have considered that its duties and responsibilities have been adequately fulfilled by expression of an opinion.”
He also regretted that the local government should have made “no enquiry until directed by the Government of India to do so into the circumstances of a case so injurious to the honour of the British rule and so damaging to the reputation of British justice in this country.” Having lambasted the High Court and the government of the NWP, Lord Lytton’s minutes ran further:
“The Governor-General in Council cannot but doubt that the death of Katwaroo was the direct result of the violence used towards him by Mr. Fuller.”
In the same breath, he strongly deprecated the British masters who were habituated to treat their Indian servants with cruelty as coward and brutal. He warned them that their “habit of resorting to blows on every trifling provocation should be visited by adequate legal penalties and those who indulge it should reflect that they may be put in jeopardy for a more serious crime.”
His order indicated that the accused barrister be charged for murder and punished accordingly.7 Besides, he placed the Joint Magistrate, Leeds, who tried Fuller for simple injuries, under strict surveillance by the government with orders not give independent charge as District Magistrate until his perfor-mance and conduct were considered satisfactory. Such intervention from the Governor-General of India, favouring an untouchable in colonial India remains unrivalled down to this date. The contrary is exemplified by the Khairlanji massacre trial. India cannot boast of an intervention remotely reminiscent of Lord Lytton.
Before his death, Rabindranath Tagore felt that India would sooner or later be liberated from foreign yoke. Sounding a warning, the poet, however, had cryptically said: “Let us hope there would not be any occasions to believe we were better under British rule!”
It may not be a surprise if independent India’s systems in place drive the vulnerable and disadvantaged to remember Tagore as prophetic. They were secured of life and properties, which are at jeopardy everywhere in India. Dalit and adivasi liberation is yet a long way.
~
Footnotes
1. Suman Chattopadhyay, Ananda Bazar Patrika, Calcutta, June 6, 1995.
2. A Division Bench, comprising Chief Justice K.S. Radhakrishnan and Justice C.K. Buch, Gujarat HC, began ‘suo motu proceedings’ against Hookah Bars. Raising fears over flourishing business of hookah bars in Ahmedabad, the Bench Friday, May 16, 2009 started suo moto trials and issued notices to the State Government, AMC (Ahmedabad Municipal Commissioner) and city Police Commissioner, respondents in this regard. The Khairlanji massacres fell to the blind eyes, deaf ears and heartless souls who feigned ignorance as victims did not mention the caste angle in the FIR or evidence before the trial court!
3. Accused Sakru Binjewar, Ramu Dhande, Shatrughan Dhande, Vishwanath Dhande, Jagdish Mandlekar and Prabhakar Mandlekar awarded death sentences and two others, Gopal Binjewar and Shishupal Dhande, life imprisonment.
4. DNA, July 15, 2010, ‘Nikam diluted caste-hatred angle in Khairlanji case.’
5. The Hindu, July 29, 2010.
6. DNA, ibid.
7. A.K. Biswas, ‘Common Man and Justice in British India’, Mainstream Annual 1994, New Delhi, November 26, 1994, pp. 92-94.
~~~
The author is a former Vice-Chancellor, B.R. Ambedkar University, Muzaffarpur, Bihar. For comments and observations, contact him on born.bengali@gmail.com
[Courtesy: Mainstream, September 18, 2010]
