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VOLUME 8 ISSUE 5&6 SEPTEMBER-DECEMBER 2009<br />
<br />
THE HUMAN RIGHTS & LAW BIMONTHLY<br />
<br />
Still UNTOUCHABLE<br />
Has the legal system abandoned Dalits?<br />
PS Krishnan I Justice Hosbet Suresh I N Paul Divakar-Abhay Kumar I Dr Anand Teltumbde<br />
V Nandagopal I Dr Sirivella Prasad I PL Mimroth I Shubhranshu Choudhary I Thomas Becker I Kenn Larsen
COMBAT LAW<br />
SEPTEMBER-December 2009<br />
VOLUME 8, ISSUE 5&6<br />
Editor<br />
Harsh Dobhal<br />
Senior Associate Editor<br />
Suresh Nautiyal<br />
Assistant Editor<br />
Neha Bhatnagar<br />
Cover Illustration<br />
Shyam Jagota<br />
Design<br />
Mahendra S Bora<br />
Asstt. Director, P&D<br />
Kamlesh S Rawat<br />
Deputy Manager, Circulation<br />
Hitendra Chauhan<br />
Editorial Office<br />
576, Masjid Road, Jangpura<br />
New Delhi-110014<br />
Phone : +91-11-65908842<br />
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E-mail your queries and opinions<br />
to: editor@combatlaw.org<br />
lettertoeditor@combatlaw.org<br />
combatlaw.editor@gmail.com<br />
Website: www.combatlaw.org<br />
For subscription & circulation<br />
enquiries email to:<br />
subscriptions@combatlaw.org<br />
Phone: +91-09899630748<br />
Any written matter that is published in<br />
the magazine can be used freely with<br />
credits to <strong>Combat</strong> <strong>Law</strong> and the author.<br />
In case of publication, please write to<br />
us at the above-mentioned address.<br />
The opinions expressed in the articles<br />
are those of the authors.<br />
Epic Shame<br />
Superiority and purity of race formed the polluting foundations of<br />
Nazism which was finally defeated by the logic of time and history.<br />
Slavery too, having had its run, was abolished. But the institution of<br />
caste has been determining a human being’s destiny for almost as long<br />
as India claims to be a civilisation. Till date, even the much rational,<br />
educated citizen of India has been deriving sanction from it to exclude<br />
and discriminate against a community, known as lower castes or ‘Dalits’,<br />
finding themselves at the bottom of a cruel Indian caste system.<br />
Many of them treated as untouchables, they are denied basic dignity<br />
of life, fundamental human rights, civil liberties, rightful opportunities<br />
to develop, advance and make informed choices in life. Violence in all its<br />
forms is perpetrated against them – physical, psychological, cultural<br />
and economic. Even our claim to educating them has not been able to lift<br />
the Dalits out of their centuries of miserable conditions as much as the<br />
education has failed to enlighten and liberate the minds of the so-called<br />
upper castes and purge them of caste prejudices. Even today, over onesixth<br />
of India’s population, roughly some 170 million people, live a precarious<br />
existence, shunned by Indian society.<br />
After gaining Independence, India embarked on quite a progressive<br />
journey towards enacting a plethora of progressive legislations to uplift<br />
various marginalised communities. With regard to Dalits, we have had<br />
The Protection of Civil Rights Act, 1955, The Bonded Labour System<br />
(Abolition) Act, The Child Labour (Prohibition and Regulation) Act,<br />
1986 and the Scheduled Castes and Scheduled Tribes (Prevention of<br />
Atrocities) Act, 1989, among others.<br />
It has been two decades when the SC/ST (PoA) Act was passed aiming<br />
at eliminating atrocities against Dalits with provisions for protection,<br />
compensation and rehabilitation of the victims of caste bias and punishment<br />
for perpetrators of violence. But, like all other progressive legislations,<br />
this law also has served more of a decorative purpose on paper<br />
than giving desirable effects to the rights envisaged in the Act. The<br />
implementation of the SC/ST (PoA) Act, due to shoddy investigations<br />
by all pervasive upper caste mindset, remains abysmally weak even on<br />
its 20th anniversary.<br />
If we have a look at the available data, more than 62,000 human<br />
rights violations are recorded against Dalits annually, with an average of<br />
two Dalits assaulted every hour, two murdered and at least an equal<br />
number tortured or burned every day. There are millions of SC/ST children<br />
working as child labour. About 80 to 90 percent Dalits who work as<br />
bonded labour do so in order to pay off their debt while about an estimated<br />
800,000 are still engaged in manual scavenging. Dalit women in<br />
India face triple burden of caste, class and gender with an average of<br />
three Dalit women and children raped every day.<br />
Judiciary is generally considered to be the last ray of hope for the dispossessed<br />
and victimised. However, the conviction rate of crimes<br />
against Dalits is abysmally low at only about 2.31% while the number<br />
of acquittal is six times more. Over 70% cases are still pending. This is<br />
not to suggest that the Act has not resulted in helping the cause of Dalits<br />
but the results are far from desirable. The problem does not lie with the<br />
law alone. Apart from social awareness and education to change the<br />
anti-Dalit mindset, we perhaps need more teeth to the law, provisions<br />
for a better implementation and stringent actions against violators.<br />
This issue of <strong>Combat</strong> <strong>Law</strong> takes this as an opportunity to review the<br />
20 years of the PoA Act, with eminent experts and activists highlighting<br />
the shortcomings and recommending amendments to make the law<br />
more accountable and effective in an attempt to fight against all sources<br />
of discrimination, inequality and exclusion in pursuit of a more egalitarian<br />
social order.<br />
Photo courtesy: Websites & others<br />
Harsh Dobhal
C O N T E N T S<br />
DALIT RIGHTS<br />
6<br />
INTERVIEW<br />
32<br />
"Empower Dalits for<br />
Empowering India"<br />
Retrospect and Prospect<br />
The PoA Act, now two decades old, was enacted to protect<br />
Dalits from wanton attacks by the upper castes, but the<br />
law has not achieved desirable results<br />
–PS Krishnan<br />
A bureaucrat-cum-crusader<br />
of Dalit cause, PS<br />
Krishnan has always been<br />
behind-the-scene of the<br />
historical initiatives that<br />
have positively impacted<br />
millions of Dalits in India<br />
44<br />
38<br />
Right not to<br />
be treated as<br />
untouchable<br />
Khairlanji: Whither the atrocity Act?<br />
If the justice delivery system is blind to the social reality of<br />
caste, the entire exercise of creating the constitutional<br />
structure and laws for protecting Dalits becomes selfdefeating<br />
–Dr Anand Teltumbde<br />
There is an urgent need<br />
to redraft Article 17 in<br />
the form of a right -<br />
'right not to be treated<br />
as an untouchable'<br />
–Justice (Retd) H. Suresh<br />
48 59<br />
A neglected component<br />
In the last five years, the system has denied SCs a whopping<br />
sum of Rs 76,690 crore that should have been earmarked<br />
for them under the special component plan<br />
–N Paul Divakar & Abhay Kumar<br />
Tardy implementation in Rajasthan<br />
The affected groups experience violence on daily basis and<br />
the deterrence envisaged in the laws especially enacted for<br />
this purpose is not in evidence.<br />
–PL Mimroth<br />
2<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
C O N T E N T S<br />
DALIT RIGHTS<br />
62<br />
65<br />
An experiential review<br />
of SC/ST (PoA) Act<br />
Recommendations of Justice Punnaiah<br />
Commission<br />
The safeguards ensured by the Constitution have become<br />
merely "proclamation of theory" in the backdrop of nonimplementation<br />
of the laws meant for Dalit upliftment<br />
–Imran Ali<br />
Dignity of life and equal<br />
opportunities to Dalits are<br />
distant dreams despite 20<br />
years of enactment of<br />
SC/ST (PoA) Act<br />
–V Nandagopal<br />
67<br />
PRISONERS' ABUSE<br />
69<br />
Dalit laws: Mere<br />
paper tigers?<br />
Across India, the SC/ST<br />
(PoA) Act is operating<br />
more in defiance than<br />
in compliance. A<br />
ground reality report<br />
from Gujarat<br />
Condemned Twice<br />
Various forms of abuse by prison staff and other inmates<br />
have become a common feature in the lives of those incarcerated<br />
women whose basic human rights stand violated<br />
while they serve a sentence<br />
–Leni Chaudhuri & Reena Mary George<br />
ADIVASIS<br />
73<br />
TRIBAL RIGHTS<br />
76<br />
Jharkhand's dispensable tribe<br />
After the police firing incident on the Adivasis near<br />
Kathikund in December 2008, the tribals want the government<br />
to cease its repression of the community and terminate<br />
the catastrophic project<br />
–Thomas Becker<br />
Lost world of Chakmas<br />
The ancient tribe of Chakmas today desperately needs to be<br />
uplifted from the depths it has been spurned into<br />
–Kenn Larsen<br />
www.combatlaw.org 3
C O N T E N T S<br />
ENVIRONMENT<br />
Haunting Beauty<br />
of the Ghats<br />
JUDGEMENT<br />
HIV/AIDS: HC brings<br />
hope to many<br />
81<br />
The book captures the<br />
diversity of the Western<br />
Ghats or Sahyadri even as<br />
the volume examines the<br />
ecological wounds caused<br />
by the greedy<br />
–Suresh Nautiyal<br />
82<br />
In a landmark judgement<br />
that has wide implications,<br />
the Bombay HC has ordered<br />
free of cost second line<br />
treatment to persons living<br />
with HIV/AIDS, thus bringing<br />
a sigh of relief to many who<br />
were not responding to<br />
first-line therapy<br />
FARMERS' SUICIDE<br />
83<br />
Farmer graveyard?<br />
On an average, four farmers<br />
kill themselves everyday, in<br />
this Re 1 rice land!<br />
–Shubhranshu Choudhary<br />
VILLAGE COURTS<br />
Speedy justice<br />
at grassroots<br />
A superficial view may<br />
create a misconception<br />
that the Gram Nyayalaya<br />
and Nyaya Panchayat are<br />
competing entities, but a<br />
closer look shows they<br />
are totally different in<br />
their approach<br />
84<br />
86<br />
DOMESTIC WORKERS<br />
Domestic worker in a hostile world<br />
88<br />
WORDS & IMAGES<br />
Thorny journey<br />
to justice<br />
Ending up as domestic servants, in the<br />
absence of any legal mechanism to protect<br />
their rights they not only face harassment<br />
at the hands of their employers but<br />
also become victims of abuse by placement<br />
agencies<br />
Somehow off-the-track book,<br />
"<strong>Law</strong> & Life" by Justice VR<br />
Krishna Iyer throws light on<br />
complex and multiple aspects<br />
of the justice delivery system<br />
in India<br />
–Anisha Mitra & Karelia Rajagopal<br />
–Suresh Nautiyal<br />
90<br />
91<br />
92<br />
Narrating evolution<br />
of Indian politics<br />
The book is an attempt to fill an important<br />
space -- a journalistic, non-academic<br />
pedagogical narrative for students who<br />
wish to explore the contours of the evolution<br />
of politics in independent India<br />
Interpreting the<br />
Interpretation<br />
The book presents interplay of concepts<br />
like 'social context', 'understanding', and<br />
varying forms of 'genre' when assessing<br />
the media-audience correlation<br />
Capturing systemic<br />
violence against Dalits<br />
The documentary is a moving narrative<br />
of systemic violation of the rights of the<br />
Dalits in a society where caste prejudices<br />
continue determining social, economic<br />
and political reality of millions<br />
–Hormazd Mehta<br />
–Rosie Rogers<br />
–Keya Advani<br />
4<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
The role you play!<br />
Dear editor,<br />
In order to manipulate law, the principle<br />
of jurisprudence that a person<br />
is presumed to be innocent till<br />
proved guilty in a court is being<br />
invoked to shield tainted politicians.<br />
The presumption of innocence<br />
relates to a routine criminal offence<br />
and not to unbecoming conduct of a<br />
person holding public office.<br />
Conduct amounting to a wrongdoing<br />
justifies a prohibition from holding<br />
public office. In the case of a government<br />
servant accused of serious<br />
misconduct he is met with suspension<br />
till his case goes through a disciplinary<br />
inquiry and later to court.<br />
In line with this suspension from<br />
service in case of government servants<br />
there has to be a bar to holding<br />
public office for elected representatives<br />
till the outcome of the cases<br />
against them is revealed. The ministers<br />
should not hold office once an<br />
FIR is registered against them more<br />
so a chargesheet. They will misuse<br />
their power and authority to manipulate<br />
their trial. This is exactly what<br />
has happened in the case of Goa<br />
health minister Vishwajit Rane<br />
whom Goa police claimed could not<br />
be traced for almost two months to<br />
serve him court summons. As<br />
emphasised by Prime Minister Dr<br />
Manmohan Singh the standard for<br />
those in public life should be that not<br />
only Caesar, but even Caesar's wife<br />
should be above suspicion!<br />
–Aires Rodrigues<br />
Ribandar, Goa<br />
L E T T E R S<br />
Manipur is 'money put'<br />
Dear editor,<br />
Where is the jewel of India? This<br />
question lies in the labyrinth of injustice<br />
done to one and all in the state of<br />
Manipur. Everyday, on an average<br />
three men are allegedly killed in the<br />
north-eastern state resulting close to<br />
1,095 male deaths due to factors best<br />
known to the deceased or the killers.<br />
Within a span of few years, the malefemale<br />
ratio will go down so much<br />
giving a negative trend in the<br />
demography. The oversized female<br />
population in Manipur has resorted<br />
to unethical means for livelihood.<br />
Khwairamband Bazaar, which is<br />
overcrowded with women who<br />
return home with few kgs of rice<br />
each evening in a worn out jeep, is<br />
just the tip of the iceberg. Where is<br />
the Sanaleibak (golden land) in this<br />
scene? The male youth in the age<br />
group 25-38 years has to suffer a lot<br />
in the struggle for existence. With job<br />
giving institution becoming meagre,<br />
a day will come when no youth<br />
remains in Manipur as 90 percent of<br />
them will move to other states and<br />
undertake inhuman jobs/labour only<br />
for the target of existence. There is no<br />
question that girls, on the other hand<br />
will not stay idle. One of the realistic<br />
trends which has cropped in<br />
Manipur is: One girl will get herself<br />
married to a man under circumstances.<br />
She will stay for some time<br />
and return back to her maternal<br />
home under lie-filled pretexts. Later<br />
when such deserted man marries<br />
other girls, the first girl will resort to<br />
"Izzat dabi" to the man. It won't be<br />
wrong to mention that parents possessing<br />
daughters are making booms<br />
of money by the above mentioned<br />
tactics. A well known joke in<br />
Manipur is "percentage". There is a<br />
percentage culture right from a plate<br />
of rice (chakluk) to a contract done<br />
by any agency. As long as this culture<br />
exists no planning and development<br />
can take place. The epoch of "chahi<br />
chatret khuntakpa" (seven hundred<br />
devastation) has already begun. Life<br />
filled with "Ex-gratia, Izzat Dabi",<br />
corruptions in all spheres coupled<br />
with "no utilisation certificates" are<br />
the azure gems which are engraved<br />
in this Sanaleibak- the golden land.<br />
–Michael Khumancha<br />
by e-mail<br />
An eye opener Special<br />
Dear editor,<br />
<strong>Combat</strong> <strong>Law</strong> magazine's Special<br />
Supplement 2009 (Fake Encounters:<br />
How they are done) that carries the<br />
extracts of the report of the<br />
metropolitan magistrate, court-1 at<br />
Ahmedabad vis-à-vis killing of<br />
Ishrat Jehan and others, is an eye<br />
opener not only for the judiciary but<br />
also for media and the sane voices. It<br />
was shocking to learn that the<br />
accused were taken into custody<br />
and then killed in cold blood. This<br />
shows how crudely and bluntly our<br />
system works. It also shows that in a<br />
democracy like ours no stone is left<br />
unturned to make mockery of the<br />
democratic values, not to mention<br />
the human rights. Our leaders talk<br />
very loud about our democracy at<br />
the global fora and portray India as<br />
a secular, multi-religious and multiethnic<br />
nation with diverse valuesystems<br />
and ethos. These leaders<br />
also want a permanent seat on the<br />
UN Security Council. However,<br />
question is: Can these leaders look<br />
into their hearts first and then<br />
talk about the human rights and<br />
secularism?<br />
I agree with the editorial of the<br />
magazine that the report has scientific<br />
elements in it and truly a beacon<br />
light for other judicial officers conducting<br />
similar enquiries.<br />
True democracy is one of the best<br />
forms of governance till today and in<br />
such a system the police and security<br />
forces should have no licence at all to<br />
kill anybody. The laws like AFSPA<br />
give such licences and the time is ripe<br />
to do away with such draconian laws<br />
at the earliest.<br />
–Natasha N<br />
LLB, IInd year<br />
University of Delhi<br />
www.combatlaw.org 5
DALIT RIGHTS<br />
In their homelands<br />
their life is a daily<br />
struggle to be treated<br />
with the minimum<br />
dignity as normal<br />
human beings - a<br />
battle in which all<br />
odds are stacked<br />
against them and<br />
which they have been<br />
and still are losing.<br />
The PoA Act, now two<br />
decades old, was<br />
enacted to protect the<br />
SCs and STs from<br />
wanton attacks by<br />
those claiming to be<br />
superior. But the law<br />
has not achieved<br />
desirable results to<br />
reduce the number of<br />
crimes against them,<br />
including murders and<br />
rapes, and the<br />
conviction rates are<br />
dismally low, writes<br />
PS Krishnan as he<br />
critically analyses<br />
atrocities committed<br />
on a community<br />
springing from the<br />
centuries old<br />
caste bias<br />
ATROCITIES AGAINST DALITS<br />
Retrospect<br />
and Prospect<br />
Atrocities against scheduled<br />
castes (SCs) and scheduled<br />
tribes (STs) and untouchability<br />
are the natural expressions of the<br />
unnatural Indian caste system (ICS).<br />
Therefore, a clear understanding of<br />
the age-old phenomenon of<br />
“untouchability”, which is an integral<br />
part and essential feature of the<br />
ICS and of the recent phenomenon of<br />
atrocities, can only be facilitated by a<br />
brief overview of the ancient caste<br />
bias and how it works in relation to<br />
the SCs and STs and also socially and<br />
educationally backward classes (also<br />
known as backward classes or other<br />
backward classes and hereafter<br />
briefly referred to as BCs). The usual<br />
6<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
descriptions and interpretations of<br />
the caste system, which are but of<br />
course upper caste-centric, do not<br />
bring out the essence of its nature<br />
and functions. In order to perceive<br />
that essence, it is necessary to study it<br />
from the standpoint of the large<br />
majority of the Indian people, who<br />
have been its victims in various<br />
forms and degrees, and to understand<br />
how the caste system works in<br />
relation to the SCs, STs and the BCs.<br />
Dr Babasaheb Ambedkar was the<br />
first thinker to bring a fresh approach<br />
to the examination of the essence and<br />
functioning of the caste system in<br />
India. Contrary to earlier and later<br />
practice, he focused attention on<br />
labourers in relation to the caste system.<br />
He identified its important features<br />
by characterising it as:<br />
“A division of labourers into<br />
water tight compartments” and as<br />
“an hierarchy” in which the division<br />
of labourers is graded one above the<br />
other. He further refers to this as “a<br />
stratification of occupations”.<br />
Justice Chinnappa Reddy felicitously<br />
and appropriately called caste<br />
a system of “gradation & degradation”<br />
in his judgement in the Vasanth<br />
Kumar case of 1985 [1985 Supp<br />
SCC: 714]<br />
Looking at the Indian society in<br />
relation to its socio-economic frame<br />
and from the viewpoint of SCs, STs<br />
and BCs, I consider it realistic and<br />
enlightening to distinguish four layers<br />
of castes — very different from<br />
the traditional four Varnas model.<br />
The traditional Varna model is flawed<br />
for various reasons. For one, through<br />
this model the privileged minority<br />
has appropriated for itself threefourths<br />
or even more of the conceptual<br />
space, relegating the majority to<br />
the residual space characterising it as<br />
Shudra, and leaving no space at all for<br />
another substantial part of the population<br />
who were characterised as a<br />
Varnas. This model and the literature<br />
that has drawn on this model focus<br />
on concepts like “pollution” and<br />
“purity” which are terms coined by<br />
the privileged category to justify its<br />
privilege and the deprivation of others<br />
and they only help to obfuscate<br />
the functional reality of the Indian<br />
caste system. Its greatest deficiency is<br />
that it does not bring out the castebased<br />
exploitation which was its core<br />
essence. It also does not bring out its<br />
functional role of monopolisation of<br />
advantages and privileges by a<br />
minority of the population. The diagrammatic<br />
representation (see<br />
graph) of India’s traditional socioeconomic<br />
system and structure, still<br />
in operation and which was earlier<br />
expounded in my book Empowering<br />
Dalits for Empowering India 1 and elsewhere,<br />
depicts this clearly.<br />
The topmost layer is that of privilege<br />
and prestige. It consists of<br />
The colonial era and the<br />
post-Independence<br />
decades have no doubt<br />
introduced changes, but<br />
have not fundamentally<br />
altered the four-layer<br />
profile of the socioeconomic<br />
frame of nontribal<br />
India. Broadly<br />
speaking, most of the<br />
castes in the lowest<br />
layer have been<br />
classified as SCs for the<br />
purpose of measures of<br />
special protection and<br />
safeguards since 1935<br />
and also after<br />
Independence under a<br />
series of Presidential<br />
Orders issued in terms<br />
of Article 341 of the<br />
Constitution. They have<br />
been so classified on<br />
the basis of the criterion<br />
of “untouchability”.<br />
While the numerically<br />
large castes in this layer<br />
are typically agricultural<br />
labour castes (ALCs), to<br />
this layer should also be<br />
assigned a number of<br />
numerically small<br />
castes which are<br />
nomadic (N), seminomadic<br />
(SN) or<br />
“Vimukta Jati” (VJ) or<br />
“ex-criminal”. Some of<br />
them have also been<br />
classified as SCs on<br />
account of their being<br />
found to be victims of<br />
untouchability<br />
www.combatlaw.org<br />
7
DALIT RIGHTS<br />
A Diagrammatic Representation of India’s Traditional Socio-Economic Structure<br />
TOP LAYER<br />
Castes of Individuals/families in<br />
positions/occupations of privilege and prestige<br />
Almost Invariably forward/Advanced Castes<br />
MID-LAYER<br />
(Arrows show tendency to break loose<br />
from domination of and seek equal<br />
Castes of Peasants<br />
Generally SEBC/OBC<br />
Pastoral castes<br />
Castes of Artisans & Artisanal/Artisan-like<br />
Producers<br />
Almost Invariably SEBC/OBC<br />
Castes of those<br />
rendering services<br />
Lower Mid Layer<br />
Layer<br />
Bottom Layer<br />
Agricultural Labour Castes<br />
(Mostly SCs or Dalits)<br />
Tribes outside Tribal Areas (STs)<br />
Tribes of Scheduled Areas<br />
(STs)<br />
Very Backward Peasants of Very<br />
Backward “ethnic homelands”<br />
Parallel<br />
to<br />
Bottom<br />
Layer<br />
castes, to which all or the major proportion<br />
of persons in prestigious and<br />
privileged positions and occupations<br />
traditionally belong. Such traditional<br />
positions and occupations include<br />
religious/spiritual authority, state<br />
governance and public administration,<br />
control over agricultural land<br />
(irrespective of whether and when<br />
individual ownership came into existence<br />
in a region), military professions,<br />
commerce and the like. The<br />
second layer consists of land-owning<br />
and cultivating peasant castes. In<br />
relation to land, their traditional<br />
position was between land-controlling<br />
castes and agricultural labour<br />
castes. But, as a result of post-<br />
Independence land reforms, they<br />
have recently become land-controlling<br />
castes in some parts. Some of the<br />
peasant castes are also herders of cattle,<br />
sheep, goats etc. The third layer<br />
consists of two or three sub-layers —<br />
the castes of traditional artisans and<br />
the castes providing various personal<br />
services and pastoral castes. The lowest<br />
layer consists essentially of castes<br />
of agricultural labourers. The castes<br />
of the three lower layers have traditionally<br />
been producing primary and<br />
secondary goods and rendering various<br />
types of services and labour<br />
mainly for the top layer, on unequal<br />
terms in varying degrees and forms,<br />
and involving exploitation at various<br />
levels. This has been facilitated by<br />
the economic power of the top layer<br />
aided by the ideology of “caste-withuntouchability”,<br />
the latter part (i.e.,<br />
untouchability) being directed<br />
against the castes in the lowest layer.<br />
The colonial era and the post-<br />
Independence decades have no<br />
doubt introduced changes, but have<br />
not fundamentally altered the fourlayer<br />
profile of the socio-economic<br />
frame of non-tribal India. Broadly<br />
speaking, most of the castes in the<br />
lowest layer have been classified as<br />
SCs for the purpose of measures of<br />
special protection and safeguards<br />
since 1935 and also after independence<br />
under a series of Presidential<br />
Orders issued in terms of Article 341<br />
of the Constitution. They have been<br />
so classified on the basis of the criterion<br />
of “untouchability”. While the<br />
numerically large castes in this layer<br />
are typically agricultural labour<br />
castes (ALCs), to this layer should<br />
also be assigned a number of numerically<br />
small castes which are nomadic<br />
(N), semi-nomadic (SN) or “Vimukta<br />
Jati” (VJ) or “ex-criminal”. Some of<br />
them have also been classified as SCs<br />
on account of their being found to be<br />
victims of untouchability.<br />
To this layer also belong a number<br />
of scheduled tribes specified in a<br />
series of presidential orders issued in<br />
terms of Article 342 of the<br />
Constitution. While STs as a whole<br />
are outside the ambit of the Indian<br />
caste system and the bulk of them<br />
live in remote tribal areas, some of<br />
them have been sucked out of their<br />
homelands and have virtually<br />
become ALCs like the typical SCs.<br />
Some others represent tribes which<br />
never had a separate homeland and<br />
still others may be representatives of<br />
those submerged by the advancing<br />
caste-based agricultural civilisation<br />
of India. STs outside tribal areas live<br />
in style and circumstances which are<br />
little different from those of SCs and<br />
therefore logically belong to this, the<br />
lowest layer along with the SCs.<br />
Those N, SN & VJ communities<br />
which are neither SC nor ST are<br />
entered in BC lists. The castes in the<br />
second layer i.e., the mid-layer are<br />
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DALIT RIGHTS<br />
generally found in BC lists. There are<br />
exceptions, which are logical and<br />
realistic. The presence of any caste of<br />
the top layer in BC lists is exceptional<br />
and such exceptions are either<br />
deliberately contrived aberrations or<br />
unrectified historical hangovers.<br />
STs in tribal areas — accounting<br />
for two-thirds to three-fourths of the<br />
scheduled tribe population of India<br />
— constitute a layer broadly parallel<br />
to the lowest layer and partly jutting<br />
above vaguely. This layer has nothing<br />
to do with the Panchama of/ outside<br />
the traditional four Varna model.<br />
The STs even in their homeland —<br />
though free from untouchability and<br />
the daily intrusion of and constant<br />
oppression of the caste bias — rank<br />
with SCs in the matter of all-round<br />
deprivation. In their homelands their<br />
life is a daily struggle to retain what<br />
they have against relentless external<br />
incursions — a battle in which all<br />
odds are stacked against them and<br />
which they have been and still are<br />
losing. Some of the N, SN and VJ categories<br />
have been included in the<br />
lists of STs on account of their possession<br />
of tribal characteristics.<br />
Among the main features and<br />
effects of the working of the Indian<br />
caste system through the centuries<br />
till date have been:<br />
(a) To lock up labourers as labourers,<br />
and agricultural labour castes as<br />
ALC.<br />
(b) Keep SCs down in their position<br />
with no or little scope for escape.<br />
(c) Keep STs grounded in remote<br />
areas except only to be drawn out to<br />
supplement labour requirements.<br />
SCs – as the<br />
greatest and<br />
most intensive,<br />
forced<br />
contributors of<br />
agricultural<br />
labour in India –<br />
have been central<br />
to this theme of<br />
exploitation and<br />
deprivation<br />
(d) To keep SC and ST in conditions<br />
of segregation and demoralisation<br />
and to deprive/minimise opportunities<br />
for their economic, educational<br />
and social advancement and upward<br />
mobility.<br />
(e) To Keep the backward classes tied<br />
down as providers of agricultural<br />
products (peasants), non-agricultural<br />
primary products (fisher-folk), traditional<br />
manufactured and processed<br />
products (artisans and skilled workers),<br />
service providers (hair-dressers)<br />
etc, on terms grossly adverse to them<br />
and hampering their economic, educational<br />
and social upliftment.<br />
(f) To retain a virtual monopoly over<br />
superior opportunities in the hands<br />
of a small elite drawn from the top<br />
layer of the traditional socio-economic<br />
system, by hampering, handicapping<br />
and hamstringing SCs, STs and<br />
BCs in different ways and to different<br />
degrees.<br />
SCs – as the greatest and most<br />
intensive, forced contributors of agricultural<br />
labour in India as well as<br />
other workforce, including labour of<br />
the most sordid and unpleasant type<br />
such as sanitation and death and cremation-related<br />
services – have been<br />
central to this theme of exploitation<br />
and deprivation. The agro-climatic<br />
characteristics of India, with the<br />
monsoon confined to a limited part<br />
of the year necessitating a large<br />
reserve of labour force based on the<br />
requirements for agriculture during<br />
short peak periods made it extremely<br />
important for the design and purpose<br />
of the caste system to ensure<br />
that the “untouchable” castes now<br />
classified as SCs were kept in a state<br />
of socio-economic incarceration<br />
without hope of redemption or<br />
escape. The coercive mechanism<br />
designed to secure this purpose has<br />
been:<br />
1. The caste system in its totality;<br />
2. Specifically against the scheduled<br />
castes, the instrumentality of<br />
untouchability over the centuries,<br />
which continues to this day with full<br />
virulence;<br />
3. For many centuries the Indian<br />
caste system was able to operate as<br />
the perfect instrument to keep the<br />
“untouchable” castes and plains<br />
tribes under total subjugation as<br />
providers of labour for agriculture<br />
and other purposes;<br />
4. The weapon of atrocities in the<br />
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DALIT RIGHTS<br />
modern context when SCs have<br />
rejected the caste system ideology<br />
and psychology of subservience and<br />
thus the efficiency of untouchability<br />
as a disciplining instrument has been<br />
partly blunted.<br />
Emergence of “atrocities”<br />
The reformist, nationalist and revolutionary<br />
movements of the last one<br />
and a half centuries and the<br />
Ambedkarite movement have<br />
instilled a new sense of awareness in<br />
the Dalits. Under its influence they<br />
refuse to accept their status as<br />
ordained by the Indian caste system.<br />
This was given another dimension by<br />
the movement for land reforms, for<br />
reduction of crippling burdens on<br />
sharecropping tenants and for<br />
improvements in agricultural wages<br />
like the Telengana and Tebhaga<br />
agrarian movements and the agricultural<br />
labourers’ strikes in places like<br />
Thanjavur. It became necessary for<br />
the dominant classes drawn from<br />
upper castes in different parts of the<br />
country to forge new instruments of<br />
control. This is how atrocities, as we<br />
know them, made their debut on a<br />
large scale in the 60s. As the resistance<br />
of the Dalits has grown, so the<br />
frequency and brutal ferocity of<br />
atrocities have grown apace.<br />
Existential problems of SCs<br />
Along with an understanding of the<br />
Indian caste system in relation to<br />
Dalits, equally necessary for an<br />
understanding of untouchability and<br />
atrocities in their correct context and<br />
perspective is a picture of the existential<br />
conditions of SCs and STs,<br />
which continue to operate to this day<br />
even after nearly six decades of our<br />
glorious Constitution. No doubt<br />
there has been some amelioration of<br />
their conditions compared to the pre-<br />
Ambedkar, pre-Independence, pre-<br />
Constitution stage.<br />
The present existential conditions<br />
of SCs are marked and marred by the<br />
following features:<br />
(a) Landlessness and State’s failure to<br />
distribute land among all rural SC<br />
families<br />
(b) Lack of irrigation for and poor<br />
development of even the little land<br />
held by SCs<br />
(c) Condemnation of SCs to agricultural<br />
servitude and other hard labour<br />
with poor wages/remuneration<br />
(d) Condemnation to safai karamcharis<br />
or human scavenging<br />
(e) Subjection to rampant bonded<br />
labour<br />
(f) Denial of social security and modern<br />
facilities and conditions of work<br />
for the agricultural labour sector and<br />
the rest of the unorganised labour<br />
sector which accounts for 93 percent<br />
of the entire labour force of the country<br />
and among whom SCs, including<br />
those belonging to religious minorities<br />
(SCRM) are prominently placed.<br />
In addition, including socially and<br />
educationally backward classes<br />
belonging to religious minorities<br />
(SEdBCRM) and STs including those<br />
belonging to religious minorities<br />
(STRM) are also significantly present<br />
(g) Exclusion of majority of SC children<br />
from the main school system,<br />
which manifests itself as non-enrolment<br />
(including false enrolment),<br />
low rates of enrolment, high rates of<br />
dropouts (which partly is adjustment<br />
of false/formal enrolments) and low<br />
rate of survivors at the end of school.<br />
(h) Denial of quality education and<br />
denial of “level playing field” at<br />
every level of education — particularly<br />
at higher educational level.<br />
Failure to enact reservation in private<br />
educational institutions pursuant to<br />
the 93rd amendment of 2005 and following<br />
the successful defence and<br />
upholding by the Supreme Court of<br />
the Central Educational Institutions<br />
(Reservation in Admission) Act, 2006<br />
(i) Grabbing away in 2003 of funds<br />
provided in 1996 for establishing residential<br />
schools for quality education<br />
for SCs (also similar schools for STs<br />
and BCs)<br />
(j) Denial of access to market opportunities<br />
(k) Trivialisation, routinisation and<br />
truncation of special component plan<br />
(SCP) for scheduled castes, which<br />
was initiated about a quarter century<br />
back (in the late 1970s)<br />
(l) Poor outlays in the budgetary heads<br />
of welfare/ social justice ministry<br />
(m) Unsatisfactory implementation,<br />
quantitatively and qualitatively, of<br />
existing centrally sponsored schemes<br />
(CSS) and other existing developmental<br />
instrumentalities<br />
(n) Special problems of Nomadic,<br />
semi-Nomadic and Vimukta Jati, (formerly<br />
criminal) communities have<br />
missed attention. Their problems are<br />
different from those of the numerically<br />
large SC/ST/BC communities.<br />
(o) Nominations to national commissions<br />
for deprived categories are<br />
often made inappropriately, thereby<br />
crippling their functional efficiency<br />
and converting national commissions<br />
largely into national omissions.<br />
Gross delays in tabling of annual<br />
reports in Parliament and in public<br />
domain, defeat their purpose<br />
(p) Poor representation of SC, ST and<br />
SEdBCs in important bodies relevant<br />
to development and empowerment<br />
(q) Half-hearted implementation of<br />
reservation in central as well as state<br />
governments, PSUs, PSBs, universi-<br />
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COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
ties and leaving in the limbo bill for<br />
reservation for SCs and STs in the<br />
services of the State in order to provide<br />
statutory base and force for<br />
them<br />
(r) Tampering with and diluting preexisting<br />
reservation rules, including<br />
relegation of SCs and STs from the<br />
first and third positions in the pre-<br />
1977 roster to the seventh and thirteenth<br />
positions in 1977 by misinterpreting<br />
the Supreme Court judgement<br />
in the Sabharwal case<br />
(s) Denial of normal service benefits<br />
and progress to SCs<br />
(t) Denial of entry for SCs in technical,<br />
supervisory and managerial<br />
positions in the organised private<br />
sector till date<br />
(u) Depriving SCs of reservation in<br />
PSUs while privatising them and<br />
consequent reduction in number of<br />
reserved posts<br />
(v) Continuance of atrocities and<br />
practice of untouchability<br />
(w) Failure to establish Dalit-friendly<br />
administration at all levels and to<br />
adopt Dalit-friendly personnel policy<br />
Existential problems of STs<br />
Scheduled tribes share in common<br />
many of the existential problems of<br />
the SCs. However, following are<br />
some of the difficulties faced by the<br />
former exclusively:<br />
(i) Fraudulent and illegal dispossession<br />
of STs from their lands, often<br />
with implicit or even open collusion<br />
by those wielding power<br />
(ii) Consequent reduction of large<br />
numbers of STs into landless agricultural<br />
wage labourers<br />
(iii) Conversion of tribals into<br />
minorities in traditional tribal territories<br />
(iv) Depriving STs from their traditional<br />
rights in forests. The Indian<br />
Forest Act 1927, of colonial vintage,<br />
had been continued after independence<br />
till the Scheduled Tribes and<br />
other Traditional Forest Dwellers<br />
(Recognition of Forest Rights) Act<br />
was passed in December, 2006. But,<br />
the implementation of this Act is facing<br />
rough weather of late<br />
(v) Failure to reverse the process of<br />
shrinkage of non-timber forest produce<br />
or NTFP (minor forest produce<br />
or MFP), on which a large proportion<br />
of STs depend wholly or partly for<br />
their livelihood<br />
(vi) As part of the exploitation process,<br />
poor prices being paid by private<br />
merchants as well as governmental<br />
and cooperative agencies for<br />
NTFP/MFP collected by STs<br />
(vii) Displacement of STs from their<br />
lands and territories in the name of<br />
industries, mining, hydel plants, irrigation,<br />
township and other projects,<br />
the benefit of which accrues to nontribals<br />
and non-tribal territories,<br />
major proportion of project displaced<br />
persons (PDPs) are STs<br />
(viii) Displacement of tribal communities<br />
from their traditional common<br />
property survival resources through<br />
creation of national parks, sanctuaries<br />
and biosphere reserves<br />
(ix) Delayed formation of the second<br />
commission on the administration of<br />
the scheduled areas & welfare of STs<br />
under Article 339 (1), and lack of<br />
action on its report submitted by the<br />
commission to the government in<br />
Along with an<br />
understanding of the<br />
Indian caste system<br />
in relation to Dalits,<br />
equally necessary<br />
for an understanding<br />
of untouchability<br />
and atrocities in<br />
their correct context<br />
and perspective<br />
is a picture of the<br />
existential<br />
conditions of<br />
SCs and STs<br />
2004. Further lack of transparency<br />
regarding action proposed and failure<br />
in tabling the report in<br />
Parliament and placing it in public<br />
domain<br />
Atrocities against SCs and STs,<br />
along with untouchability against<br />
SCs, has to be seen as part of this<br />
large scheme of deliberate and comprehensive<br />
deprivation of SCs and<br />
STs against the socio-historical background<br />
of the caste system and its<br />
functioning; the inadequate efforts<br />
made by post-Independence and<br />
post-constitutional governance to<br />
terminate this evil and anti-national<br />
historical legacy, and the consequent<br />
present existential plight of the SCs<br />
and STs despite some amelioration<br />
after the Constitution. This applies in<br />
varying forms and varying extents to<br />
the backward classes. However, the<br />
present discussion is confined to SCs<br />
and STs as they constitute the worst<br />
victims of the inherited system,<br />
which is largely continuing, and the<br />
victims of atrocities are mainly the<br />
SCs and along with them, to a lesser<br />
extent, the STs.<br />
Antecedents of PCR Act<br />
Before Constitution of India, 1950<br />
The following, in brief, were the pre-<br />
Constitution immediate antecedents<br />
of the Act:<br />
● Exposure of untouchability and its<br />
wide ramifications as the Achilles’<br />
Heel of the Indian society and the<br />
projected Indian polity by Dr<br />
Babasaheb Ambedkar at the round<br />
table conferences.<br />
● Negotiations between Mahatma<br />
Gandhi and other Congress leaders<br />
with Dr Babasaheb Ambedkar in the<br />
Yeravda prison following Gandhi’s<br />
fast against the Macdonald Award in<br />
September 1924, the Mahatma-<br />
Babasaheb dialogue culminating in<br />
the Yeravda Pact.<br />
● Consequent sensitisation of the<br />
nationalist movement and the Indian<br />
National Congress to untouchability<br />
and the injustices done to the SCs —<br />
its adoption of removal of untouchability<br />
as a major plank.<br />
● Enactment of the Madras Removal<br />
of Civil Disabilities Act, 1938 by the<br />
popular government of the Congress<br />
in Madras Presidency led by Rajaji.<br />
● Similar enactments in many other<br />
provinces and princely states in the<br />
years shortly before or after independence<br />
and before the Constitution of<br />
India was adopted.<br />
Under Constitution of India, 1950<br />
● The watershed of Article 17 of independent<br />
India’s Constitution adopted<br />
in 1950 reads: “17. Abolition of<br />
untouchability – untouchability is<br />
abolished and its practice in any<br />
form is forbidden. The enforcement<br />
of any disability arising out of<br />
untouchability shall be an offence<br />
punishable in accordance with law.”<br />
● Enactment of the Untouchability<br />
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DALIT RIGHTS<br />
(Offences) Act, 1955 w.e.f. from 01-<br />
06-1955, followed by immediate realisation<br />
of weaknesses of the Act.<br />
● Consequent introduction of the<br />
Untouchability (Offences) Act<br />
amendment and Miscellaneous<br />
Provisions Bill in Lok Sabha in 1972<br />
and its passing in 1976 as the<br />
Protection of Civil Rights Act, 1955<br />
with stronger, but still inadequate,<br />
provisions with effect from<br />
19.11.1976.<br />
Antecedents of PoA Act<br />
In modern times, atrocities can be<br />
traced back to the 19th century in<br />
parts of India when the discipline of<br />
untouchability began to be challenged<br />
by the “untouchables”. A<br />
committee which toured British<br />
India in 1920s for review of the working<br />
of the Government of India Act,<br />
1919 noted that many atrocities were<br />
being committed during those days<br />
against the untouchables but were<br />
going unnoticed and unpunished<br />
because no witness would come forward<br />
to give evidence. Dr Ambedkar,<br />
then MLC of Bombay, cited some<br />
early instances of atrocities against<br />
Dalits in Annexure A to the statement<br />
submitted by him to the Indian statutory<br />
commission (Simon<br />
Commission) on behalf of the<br />
Bahishkrita Hitakarini Sabha on<br />
29.05.1928, including the rioting and<br />
mass assaults on Dalits on 20.03.1927<br />
for asserting their right to drinking<br />
water from the public chowdar tank<br />
in Mahad, Kolaba district; and the<br />
mass assaults on and burning down<br />
of the dwellings of Balai people (SC)<br />
in Indore district. The early postindependence<br />
signal of the<br />
Ramanathapuram riots of 1957 starting<br />
with the assassination of the<br />
young educated Dalit leader<br />
Emmanuel for daring to defy<br />
untouchability-based interdicts on<br />
SCs did not register on the national<br />
radar though the state government<br />
took strong measures to quell the<br />
attacks on SCs. Under pressure of<br />
Dalit MPs, the government started<br />
monitoring atrocities from 1974, and<br />
in the case of STs 1981 onwards with<br />
special focus on murder, rape, arson<br />
and grievous hurt.<br />
There was a flare up of atrocities<br />
in and from 1977 onwards. The then<br />
home minister in defence, apparently<br />
to show that atrocities were not as<br />
serious as claimed, advanced the<br />
strange and shocking argument that<br />
the number of SC victims of atrocities<br />
was less than 15 percent, perhaps<br />
without understanding the implication<br />
of that argument that the SCs’<br />
due share in this is equal to their<br />
population percentage (though their<br />
entitlement to this share in landownership,<br />
national wealth, etc. were not<br />
recognised). The outcry that followed<br />
persisted resulting in a cabinet<br />
Atrocities can be<br />
traced back to the<br />
19th century in parts<br />
of India when the<br />
discipline of<br />
untouchability began<br />
to be challenged by<br />
the “Untouchables”.<br />
A committee which<br />
toured British India in<br />
1920s for review of the<br />
working of the<br />
Government of India Act,<br />
1919 noted that many<br />
atrocities were being<br />
committed during those<br />
days against the<br />
untouchables but were<br />
going unnoticed and<br />
unpunished<br />
reshuffle. At that time the government<br />
created the post of a joint secretary<br />
in the ministry of home affairs in<br />
charge of the subject of scheduled<br />
castes and backward classes including<br />
atrocities. I volunteered for this<br />
post and took up on top priority the<br />
task of monitoring of atrocities which<br />
I converted from mere receipt and<br />
transmission of statistical information,<br />
additionally into an active pursuit<br />
of individual gruesome incidents<br />
like Belchi, Bodh Gaya, Chainpur,<br />
Marathwada, Chikkabasavanahalli,<br />
Indravalli, etc. to their logical conclusion.<br />
The second important task was<br />
getting special courts with special<br />
judges for specific cases established<br />
by state governments, supported by<br />
carefully chosen special prosecutors<br />
and securing quick trials and execution<br />
of verdict without delay. In these<br />
efforts, I gratefully recall the total<br />
support of Dhaniklal Mandal, the<br />
then minister of state for home<br />
affairs. I continued this practice after<br />
the regime change in 1980 and similarly<br />
covered the atrocities at Pipra,<br />
Kafalta, Jetalpur, etc. This produced<br />
a crop of convictions and punishments<br />
including death sentences in<br />
Belchi.<br />
Atrocities continued with rising<br />
ferocity and frequency as basic contradictions,<br />
vulnerabilities and causative<br />
factors were evaded by the State at<br />
national and state levels for obvious<br />
reasons and treatment was mainly<br />
symptomatic and palliative instead of<br />
the required radical solutions.<br />
Under continued pressure of<br />
Dalit MPs and leaders, magnitude<br />
and gravity of problem was finally<br />
recognised by prime minister Rajiv<br />
Gandhi and he announced from the<br />
Red Fort in his Independence<br />
address on August 15, 1987 that an<br />
Act would be passed, if necessary, to<br />
check atrocities. I was called back<br />
from the state and appointed as special<br />
commissioner for SCs.<br />
After intensive consultations the<br />
PoA Act emerged in September 1989<br />
but not operationalised immediately<br />
under section 1 (3). I recall the active<br />
interest and support of Dr. B<br />
Shankaranand and the then home<br />
minister Buta Singh, particularly to<br />
my view that a new and stringent Act<br />
is necessary and it is not enough if<br />
the PCR Act is amended for this purpose<br />
as suggested by the ministry of<br />
welfare then.<br />
In my capacity as secretary, ministry<br />
of welfare, I took the initiative<br />
to quickly operationalise the Act<br />
w.e.f. January 30, 1990, after urgent<br />
consultations with state governments<br />
in order to swiftly cut the<br />
Gordian knot.<br />
Impact of PoA Act<br />
The Act came as a watershed in the<br />
jurisprudence of protection for the<br />
SCs and STs and their better coverage<br />
by the right to life under Article 21 as<br />
creatively interpreted from time to<br />
time by India’s higher judiciary.<br />
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DALIT RIGHTS<br />
Over time it created a certain<br />
measure of confidence in Dalits that<br />
they have a protective cover and also<br />
produced a sense of wariness in the<br />
potential perpetrators of atrocities.<br />
However, the full thrust of the Act is<br />
not available on account of deficiencies<br />
in the Act and in various aspects<br />
of the implementation of the Act.<br />
As a result of the traditional<br />
Indian socio-economic structure still<br />
largely prevalent today, most of the<br />
SCs live typically in a situation<br />
where they are the major<br />
segment/majority of agricultural<br />
wage labourers but a minority of the<br />
population. Their numerical vulnerability<br />
is accentuated by the socio-psychology<br />
of the caste system precluding<br />
support for them from labourers<br />
of other castes whose affinity is<br />
unfortunately more towards the<br />
large landowners of their respective<br />
castes. Juxtaposition of a caste of<br />
agricultural labourers (SC) with a<br />
caste of land-based DUC or DMC or<br />
DMBC to which most of the large<br />
landowners belong, provides an<br />
explosive situation which can be<br />
ignited by any immediate spark.<br />
Dalits’ resistance to various forms of<br />
discrimination and demand for normal<br />
civilised inter-personal, intercommunity<br />
relations is opposed<br />
especially by major land-owning and<br />
land-controlling DUCs, DMCs and<br />
DMBCs.<br />
The upward mobility that a small<br />
proportion of SCs have achieved<br />
through education and reservation<br />
and consequent change in lifestyle is<br />
an eyesore to those who are accustomed<br />
to seeing SCs as only indigent<br />
and subservient labourers.<br />
Even legitimate protection of<br />
their rights when encroached upon<br />
by others (the instance of encroachment<br />
on Balmiki Ashram land in<br />
Gohana in Haryana by an adjacent<br />
lawyer of the dominant upper castes)<br />
is perceived as intolerable and insolent<br />
rebellion and is resentfully<br />
stored in the mind waiting for an<br />
opportunity to wreak collective<br />
“vengeance”.<br />
Evidential analysis of atrocities<br />
Atrocities out of demand for better wages<br />
● Kilavenmani holocaust in Tamil<br />
Nadu, 25.12.1968<br />
● Atrocity in Gurha Slathian, Jammu<br />
& Kashmir, 1985,<br />
● Bihar massacres at Belchi,<br />
27.05.1979<br />
● Pipra, 26-27.02.1980<br />
● Nonhi-Nagawa, 16-17.06.1988<br />
● Damuha-Khagri Toli, 11.08.1988<br />
Atrocities connected with bonded labour<br />
● Killing of Bacchdas in Mandsaur<br />
district, MP, 1982<br />
● Atrocity on bonded SC quarrying<br />
labourers at Chikkabasavanahalli,<br />
near Bangalore, Karnataka, 1976<br />
Atrocities connected with land<br />
● Atrocity in Rakh Amb Tali, Jammu<br />
& Kashmir, 10.07.1988<br />
● Killings etc., in Bihar at Bodh Gaya,<br />
08.08.1979<br />
● Chainpur, 10.12.1978<br />
● Khairlanji, Maharashtra,<br />
29.09.2006<br />
Atrocities connected with civic facilities<br />
● Killings & arson in Kachur, MP,<br />
25.06.1985<br />
● Atrocity in Diyalpur, Haryana<br />
26.11.1997<br />
● Hold-up of dead bodies of aged<br />
women, one each in Konalam, Tamil<br />
Nadu, 1982 and Patchalanadakuda,<br />
AP, 1989<br />
Atrocities graduating from untouchability<br />
● Jetalpur, Gujarat, 1980<br />
● Destruction/damaging of hundreds<br />
of huts/houses in many villages of<br />
south Arcot & adjoining districts,<br />
Tamil Nadu, September 1987 &<br />
January 1988<br />
● Massacre on account of an SC<br />
bridegroom riding on horseback at<br />
Kafalta, Uttar Pradesh, 09.05.1980<br />
● Masari, Rajasthan, 09.07.1989<br />
● Panwari, Uttar Pradesh, 02-06-1990<br />
● Kumher, Rajasthan, 06.06.1992<br />
● Drinking water segregation-related<br />
untouchability<br />
● School in Divrali, Rajasthan,<br />
December 1983<br />
● Kachur, Madhya Pradesh,<br />
25.06.1985<br />
● Udamgal-Khanapur, Karnataka,<br />
06.02.1988<br />
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DALIT RIGHTS<br />
● Killings etc., on temple entry right<br />
issue at Hanota, MP, 1984, (rare case<br />
of death sentence for two on<br />
11.10.1988)<br />
● Nathdwara, Rajasthan, 1988 and<br />
again in 2004<br />
Atrocities connected with Dalit assertion<br />
of self-respect & equality<br />
● Eight Dalits were massacred, some<br />
of them well educated, in Tsunduru,<br />
Guntur District, Andhra Pradesh,<br />
06.08.1991.<br />
● Gohana, Sonepat District, Haryana<br />
where on August 31, 2005, 55 houses<br />
were destroyed by arson and another<br />
97 houses were looted. All of them<br />
were pucca houses. Twenty-five percent<br />
Balmikis of this town have,<br />
through their hard labour, savings<br />
and some education gave up the traditional<br />
occupation of scavenging<br />
and switched to more dignified occupations<br />
with some dignity.<br />
● The atrocities extending over eight<br />
to nine days from August 1, 1978 on<br />
Dalits in Marathwada following the<br />
resolution moved by the chief minister<br />
in the assembly for renaming the<br />
Marathwada University after Dr<br />
Babasaheb Ambedkar’s name in<br />
response to a long standing Dalit<br />
desire and in fulfillment of earlier<br />
promises. In the name of opposing<br />
the proposed renaming, on the one<br />
hand mobs attacked Dalit agricultural<br />
labourers with whom land-owning<br />
DUC had enmity on account of<br />
constant wage-disputes; on the other<br />
Majority of STs<br />
live in their own<br />
tribal territories or<br />
homelands where<br />
they are in majority<br />
and therefore are safe<br />
from physical attacks<br />
that SCs are<br />
vulnerable to. But<br />
when they are drawn<br />
out of their territories<br />
into the plains as<br />
migrant labourers<br />
etc., they become<br />
equally vulnerable<br />
as the SCs<br />
hand educated Dalits were targeted<br />
because of the improvement registered<br />
in their standard of life and<br />
education.<br />
Analysis of atrocities on STs<br />
A large majority of STs live in their<br />
own tribal territories or homelands<br />
where they are in majority and therefore<br />
are safe from physical attacks<br />
that SCs are vulnerable to. But when<br />
they are drawn out of their territories<br />
into the plains as migrant labourers<br />
etc., they become equally vulnerable<br />
as the SCs. One of the serious cases of<br />
atrocities on STs is the mass rape of<br />
six ST women labourers in Padaria,<br />
Bihar.<br />
In their homelands they are<br />
sometimes subjected to mass killing<br />
not at the hands of mobs but the<br />
police when they resist illegal acquisition<br />
of their lands or their other<br />
age-old traditional rights. On April<br />
19, 1985, in Banjhi area of Sahibganj<br />
district in Bihar, 15 STs including an<br />
ex-MP were killed in police firing on<br />
an agitated mob protesting against<br />
deprivation of traditional fishing<br />
rights by the government, which settled<br />
a tank in favour of a non-local,<br />
non-ST.<br />
The second incident was in<br />
Indravalli, Adilabad district of<br />
Andhra Pradesh in 1978 where 10<br />
STs were killed in police firing in<br />
connection with a land dispute.<br />
Killing in police action is not covered<br />
by the PoA and many more deficiencies<br />
in the PoA Act hamper its benefits<br />
reaching the Dalits promptly,<br />
effectively and fully and right to life<br />
under Article 21 has not been made a<br />
reality for them. The provision in section<br />
14 (2) requiring the state government<br />
to specify for each district a<br />
court of session to be a special court<br />
to try the offences under this Act is<br />
also not fully implemented. This contradicts<br />
the very purpose “of providing<br />
for speedy trial”, because trial<br />
will not be speeded up by merely<br />
calling an existing court (with all of<br />
its load of various cases) a special<br />
court. Instead the section ought to<br />
have provided and even now ought<br />
to provide for the establishment of an<br />
exclusive special court in each district<br />
exclusively to try the offences<br />
under this Act, on day-to-day basis<br />
and no other offences with corresponding<br />
provisions for an exclusive<br />
special public prosecutor and a special<br />
investigating officer.<br />
Section 3 in the Act does not list<br />
among the crimes of atrocities social<br />
boycott, economic boycott, social<br />
blackmail and economic blackmail,<br />
which are realities faced by Dalits<br />
whenever they make just demands<br />
or resist injustices or asserts their<br />
rights. Section 3 (2) of the Act does<br />
not provide death sentence for mur-<br />
14<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
der where the court considers death<br />
sentence appropriate.<br />
The protection of section 10 of the<br />
Act by externment is not available for<br />
the SCs who are the main victims of<br />
the atrocities (more than 80 percent<br />
of atrocities against SCs and STs are<br />
committed on SC) while the share of<br />
SCs specifically in cases of arson and<br />
grievous hurt is close to 90 percent.<br />
The Act also fails to take the SC<br />
converts to Christianity (SCX) or Dalit<br />
Christians within the protective<br />
umbrella of its ambit though SCX have<br />
been subjected to atrocities not because<br />
of their religion but because of the<br />
same reason why SC Hindus have<br />
been victimised. This was among the<br />
issues, which held up the commencement<br />
of the proper trial in the<br />
Tsunduru case till November 2004.<br />
Deficiencies in implementation<br />
This falls in addition to deficiencies<br />
in the Act itself. No matter how<br />
sound an Act is, unless the personnel<br />
at different levels in charge of its<br />
implementation perform totally in<br />
accordance with the letter and spirit<br />
of the Act, its implementation will<br />
fall short of the objective of reaching<br />
the protection of the Act to all the<br />
people intended. One of the practical<br />
problems experienced by the<br />
victims and survivors of atrocities<br />
and by Dalit and human rights<br />
activists at the field level is the<br />
indifference of local level personnel<br />
and callous attitude of higher<br />
authorities (all subject to honourable<br />
exceptions).<br />
Analysis of atrocities<br />
A close study of the annual reports<br />
laid in Parliament as required by section<br />
21 (4) of the PoA Act reveals that<br />
of the total number of cases with<br />
police at beginning of each year<br />
including those brought forward<br />
from previous year, only 50-60<br />
percent have been chargesheeted<br />
in courts.<br />
Table (1) shows the percentages<br />
of disposal of cases in courts.<br />
From the point of view of the victims<br />
of atrocities the figures in the<br />
4th row are the most relevant. While<br />
they may not be aware of statistical<br />
details, the victims’ perception is that<br />
the Act and its implementation fall<br />
far short of their expectation and<br />
need and the SCs in each area are<br />
aware of the acquittals in many serious<br />
cases of atrocities and consequent<br />
miscarriage of justice.<br />
The Dalits perceive this as a failure<br />
of the complete system and are<br />
not interested in the apportionment<br />
of blame among the different limbs<br />
of the system and of the State.<br />
The low figures in row 1 are also<br />
within their perception in the shape<br />
of the situation in which substantive<br />
trial in Tsunduru (06.08.1981) case<br />
could start only in November 2004<br />
and the Kumher (06.06.1992) case is<br />
still languishing.<br />
All in all, though the Act has<br />
given some sense of security to the<br />
Dalits, its effectiveness has not measured<br />
up to its potential and purpose<br />
on account of deficiencies in the Act<br />
1 Percentage of cases<br />
in which trial<br />
completed in courts<br />
at beginning of the<br />
year including B/F of<br />
previous year<br />
2 Percentage of cases<br />
convicted to trialcompleted<br />
cases<br />
3 Percentage of cases<br />
acquitted or<br />
discharged to trial<br />
completed cases<br />
4 Percentage of cases<br />
convicted to total<br />
cases in courts<br />
5 Percentage of cases<br />
acquitted or<br />
discharged to total<br />
cases in courts<br />
Year 2003<br />
(Latest<br />
Annual<br />
Report<br />
tabled on<br />
25.11. &<br />
28.11.2005)<br />
and delay and laches in investigations<br />
and the slow progress of trial<br />
and large scale acquittals.<br />
Further, the annual reports laid<br />
before Parliament do not bear the<br />
impress of in depth and critical analysis,<br />
identification of problems and<br />
Table-1<br />
efforts at resolution. They look like a<br />
mere enumerative and uncritical<br />
recital of state governments’ reports.<br />
For e.g., there is nothing to explain<br />
the sudden and steep and primafacie<br />
inexplicable and incredible fall<br />
of new cases registered in Uttar<br />
Pradesh from 9,764 in 2001 to 5,841 in<br />
2002 and 1,778 in 2003!<br />
The greatest defect is that special<br />
mobile courts do not exist in every<br />
district as a means of handing out<br />
swift and deterrent punishment on<br />
the spot. Wherever a mobile court<br />
exists and has delivered punishment<br />
immediately, I have personally seen<br />
the impact of fear and curbing of<br />
untouchability practice at least for<br />
some time (doses need to be repeated<br />
periodically for this chronic disease).<br />
2002 2001 2000 1999<br />
14 % 21 % 11 % 8 % 10 %<br />
13 % 11 % 12 % 11 % 12 %<br />
88 % 89 % 88 % 89 % 88 %<br />
2 % 2 % 1 % 1 % 1 %<br />
12 % 18 % 9 % 6 % 8 %<br />
Where special mobile courts exist<br />
their functioning is often hampered<br />
by thoughtless actions like withdrawal<br />
of vehicles, rendering mobile<br />
courts immobile on certain occasions,<br />
keeping vacant posts unfilled etc.<br />
This has laid the foundation for non-<br />
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DALIT RIGHTS<br />
and-ineffective implementation of<br />
the categorical constitutional mandates<br />
of Article 17 read with Article<br />
14 and 46.<br />
Some neo-modern<br />
forms of untouchability<br />
have appeared in rural<br />
as well as urban areas<br />
in many parts of the<br />
country, in keeping with<br />
new developments.<br />
For example, explicit<br />
caste bias at village<br />
teashops is a recent<br />
phenomenon which has<br />
paved way for a variety<br />
of discriminatory<br />
practices such as<br />
separate seating,<br />
separate and usually<br />
old, dirty and cracked<br />
or chipped glasses,<br />
for SCs<br />
Deficiencies in implementation<br />
The deficiencies in the Act have been<br />
compounded by severe deficits of<br />
implementation all along the line,<br />
presenting a more dismal picture<br />
than even the implementation of the<br />
POA Act.<br />
Following are the highlights of a<br />
statistical analysis of the annual<br />
reports tabled in each house of<br />
Parliament by the government from<br />
1977 up to 2003:<br />
● Of the total number of cases with<br />
police at beginning of each year<br />
including those brought forward<br />
from previous year, only 1/8th to<br />
1/5th have been chargesheeted in<br />
courts.<br />
● A number of states are reporting nil<br />
against new cases registered in the<br />
year, which is far from reality.<br />
● The number of cases reported by<br />
many states is unrealistically low, for<br />
example, only two in 2002 and three<br />
in 2003 in Tamil Nadu.<br />
● The percentage of conviction in<br />
courts and other quantitative data<br />
are much more bleak than even for<br />
the PoA Act both at the police stage<br />
as well as at the court stage.<br />
● The figures do not mesh with the<br />
ground level reality of rampant<br />
untouchability and the registration<br />
and variations is apparently the<br />
product of casualness and in some<br />
cases perhaps even election-related<br />
remote controls.<br />
Even the pan-India picture<br />
belongs to a different world away<br />
from reality.<br />
The annual reports do not contain<br />
any indication either of the state governments<br />
or the central government<br />
making efforts to fulfill the specific<br />
mandates of section 15A nor do they<br />
show any application of mind to critically<br />
identify deficiencies and<br />
anomalies in the reported statistics<br />
and correct them.<br />
Some neo-modern forms of<br />
untouchability have appeared in<br />
rural as well as urban areas in many<br />
parts of the country, in keeping with<br />
new developments. For example,<br />
explicit caste bias at village teashops<br />
is a recent phenomenon which has<br />
paved way for a variety of discriminatory<br />
practices such as separate<br />
seating, separate and usually old,<br />
dirty and cracked or chipped glasses,<br />
for SCs.<br />
In many metropolitan areas,<br />
untouchability has seemingly attenuated,<br />
but is practised with sophisticated<br />
concealment in variety of ingenious<br />
ways, revealing creativity worthy<br />
of a better cause. In many modern<br />
offices, Dalits have to suffer snide<br />
remarks and quiet and neat acts of<br />
discrimination.<br />
Acts need more teeth<br />
In the Dalit manifesto of 1996, I listed<br />
some important measures required<br />
to strengthen the Act so as to make<br />
the right to life guaranteed by Article<br />
21 of the Constitution to every person<br />
a reality for the SCs and STs and<br />
also included therein drafts of related<br />
amendment of sections 14 and 15<br />
and inserting a new clause 15(A).<br />
These related to the establishment of<br />
a court of session in each district to<br />
be a special court exclusively to try<br />
the offences under this Act, appointment<br />
of a public prosecutor for each<br />
such court for the purpose exclusively<br />
of conducting cases under this Act,<br />
and appointment of a police officer<br />
as investigating officer exclusively<br />
for the purpose of investigation of<br />
the cases under the Act. The measures<br />
also included certain related<br />
matters in order to see that the purpose<br />
of the above provisions is not<br />
administratively defeated such as the<br />
stipulation that the judges, the special<br />
public prosecutors and the special<br />
investigating officers should be<br />
appointed from panels prepared on<br />
the basis of their record and reputation<br />
for upholding the rights of SCs<br />
and STs, especially their right to protection<br />
from violence. The Dalit manifesto<br />
also contained a draft of the<br />
amendment of clause (3) of section 2<br />
of the Act to include social boycott,<br />
economic boycott, social blackmail,<br />
economic blackmail as atrocities,<br />
recognition of any form of disrespect<br />
to the statues of Dr Babasaheb<br />
Ambedkar as a collective atrocity<br />
against SCs and STs, and to provide<br />
for death sentence for murder as provided<br />
in section 302 of the IPC and<br />
for mandatory death sentence for<br />
multiple murders, multiple mass<br />
rapes and gang rapes. The draft further<br />
contained an amendment of section<br />
(10) so as to make the provision<br />
of externment of a person likely to<br />
commit an offence in order to protect<br />
SCs and STs who reside outside<br />
scheduled areas or tribal areas and<br />
other measures like the constitution<br />
of a special wing of rapid action force<br />
at the Central level as well as state<br />
levels, to exclusively deal with atrocities<br />
against SCs and STs so that any<br />
outbreaks could be quelled promptly.<br />
These have been pursued from<br />
time to time with different governments<br />
personally as well as through<br />
letters.<br />
The Dalit manifesto also included<br />
amendments required in the PCR Act<br />
like mandatory establishment of a<br />
special mobile court in each district<br />
for trying cases under the PCR Act on<br />
the spot, and certain other administrative<br />
as well as civil society measures<br />
required to realise for the SCs<br />
and STs the right to life under Article<br />
21 which includes right to live with<br />
self-respect, the practice of untouchability<br />
being a fundamental attack on<br />
the self-respect of the SCs.<br />
These amendments and measures<br />
in respect of both the Act have also<br />
16<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
been recommended by the national<br />
commission to review the working of<br />
the constitution (NCRWC).<br />
Role of human rights bodies<br />
A number of Dalit and human rights<br />
organisations and activists have been<br />
engaged in helping and guiding SC<br />
and ST victims and survivors of<br />
atrocities towards rehabilitation. The<br />
groups’ grassroots experience has<br />
brought out specific problems of<br />
implementation. These are partly<br />
traceable to the lacunae in the PoA<br />
Act and partly to the lackadaisical<br />
way in which individuals are positioned<br />
in posts of responsibility for<br />
actual day-to-day implementation of<br />
the Act and indifference, subject to<br />
honourable exceptions, at the top<br />
levels of the political and permanent<br />
executive at the national, state and<br />
sub-state levels.<br />
After twenty years<br />
This is the twentieth year since the<br />
Act came into existence. The Act was<br />
passed by Parliament and received<br />
the assent of the president on<br />
September 11, 1989 and came into<br />
force with effect from January 30,<br />
1990. A number of Dalit and human<br />
rights organisations feel that now<br />
time should be utilised to critically<br />
review the performance of the State<br />
and its various limbs in its implementation<br />
and the realisation of the<br />
objective of the Act and to come out<br />
with measures required to further<br />
strengthen the PoA Act, 1989 and<br />
Rules, 1995 including essential<br />
amendments to the Act and other<br />
measures required to ensure its more<br />
effective implementation. A preliminary<br />
draft on the amendments had<br />
been prepared by a working group,<br />
which included various points<br />
already mentioned in the Dalit manifesto<br />
of 1996 and others arising from<br />
the field experience of the last 20<br />
years. This preliminary draft was<br />
sent to a number of Dalit and human<br />
rights organisations for their feedback<br />
and suggestions. A national<br />
coalition for strengthening the PoA<br />
Act and its implementation was also<br />
set up in September 2009. The coalition<br />
has on its agenda the finalisation<br />
of the draft and to review, finalise<br />
and prioritise the amendments proposed<br />
and to work out the strategies<br />
and other measures for strengthening<br />
the Act and Rules and to secure<br />
their effective implementation and<br />
for the purpose to undertake mobilisation<br />
of Dalits, friends of Dalits and<br />
all those who believe that the security<br />
and empowerment of Dalits is the<br />
sine qua non for the security and<br />
empowerment of India.<br />
Amendments required<br />
Amendments required in the Act<br />
include:<br />
(a) Amendments required to speed<br />
up trials and the pre-trial process.<br />
(b) To bring into the list of atrocities<br />
certain crimes which do occur but<br />
were not included in section 3 of the<br />
Act. Major examples are social boycott,<br />
economic boycott, social blackmail<br />
and economic blackmail.<br />
(c) Amendment to section 10 to make<br />
externment relevant to the scheduled<br />
castes situation also.<br />
(d) A new chapter incorporating the<br />
rights of victims and witnesses. One<br />
specific problem area which needs<br />
much consideration pertains to the<br />
terms “with intent”, “intentionally”,<br />
“intending”, “knowing it to be likely”,<br />
etc. and the interpretation placed<br />
on these terms by courts in trials.<br />
(e) Strengthening and elaborating the<br />
presumption clause in section 8 is<br />
also an area needing careful thought.<br />
These are ideas that have been initiated<br />
and require to be developed.<br />
Other than amendments to the<br />
Act, some measures have to be<br />
adopted to ensure that the State as a<br />
whole and every limb of the State<br />
function effectively and sincerely,<br />
taking the constitutional mandates<br />
on the State and the constitutional<br />
rights of Dalits with the seriousness<br />
that they deserve and need. This is a<br />
matter which requires careful<br />
thought based on the field experience<br />
of Dalit and human rights<br />
organisations and activists so that<br />
practical and practicable measures<br />
can be evolved, to be taken up with<br />
the government and political parties.<br />
This can include training and orientation<br />
of lawyers and activists to<br />
utilise the Act and the socio-historical<br />
inputs contained in this so as to<br />
make their role in court and precourt<br />
stages most effective.<br />
Along with these measures,<br />
directly connected with the Act, the<br />
Rules and their implementation, are<br />
related matters like the impact of the<br />
recent amendment to section 41 of<br />
the CrPC and the need for a<br />
constitutional amendment to provide<br />
the entry “development, welfare and<br />
protection of scheduled castes and<br />
scheduled tribes” in “List III –<br />
concurrent list” of the seventh<br />
schedule of the Constitution. The<br />
www.combatlaw.org 17
DALIT RIGHTS<br />
amendment to section 41 of CrPC is<br />
the outcome of human rights<br />
advocacy in view of the feeling that<br />
the powers of police to make arrest<br />
are used indiscriminately against the<br />
poor and the helpless. While this<br />
feeling is justified in the general<br />
context, the context of atrocities is<br />
different. Here, the accused include<br />
or are backed by persons of influence<br />
and power. In such a case, the<br />
problem faced is not the<br />
indiscriminate arrest by police, but<br />
hesitation or even unwillingness to<br />
make arrest. Therefore, this<br />
amendment needs a further<br />
amendment to exclude from its<br />
purview the PoA Act, the PCR Act<br />
and other Acts for the protection of<br />
the weak against the powerful like<br />
the Bonded Labour System Abolition<br />
Act, 1976. At the same time, the<br />
provision in section 41 empowering<br />
victims and survivors to go on<br />
appeal on their own even when the<br />
State is hesitant or unwilling is<br />
welcome and must be preserved.<br />
The above constitutional amendment<br />
proposed earlier in the Dalit<br />
manifesto 1996 etc will remove a serious<br />
gap in the seventh schedule and<br />
will help in strengthening the comprehensive<br />
social justice action.<br />
The campaign<br />
This focused campaign has drawn<br />
together a number of Dalit and<br />
human rights organisations and<br />
activists on a united platform. This is<br />
a good augury for similar focused<br />
campaigns, jointly by all Dalit and<br />
human rights and patriotic organisations<br />
and activists on many other<br />
issues pertaining to the rights of the<br />
SCs and STs (the resumption of the<br />
thread for a bill of reservation for SC<br />
and ST in services under the State<br />
and a bill for reservation in private<br />
educational institutions, other education-related<br />
and land-related issues,<br />
etc. and issues listed in the draft common<br />
minimum programe, 2009 in<br />
respect of scheduled castes, scheduled<br />
tribes and backward classes and<br />
the Himalaya Proclamation (2004),<br />
all of which have been communicated<br />
to different political parties and<br />
leaders). This campaign can also be<br />
utilised to spread awareness among<br />
agencies of the State and members of<br />
the civil society, including the leaders<br />
of the print and visual media, of the<br />
The higher judiciary<br />
can play a decisive<br />
helping hand in certain<br />
aspects of atrocities and<br />
untouchability. For<br />
example, the high courts<br />
in their capacity as<br />
overall superintendence<br />
of lower courts may,<br />
it is respectfully<br />
suggested, consider<br />
measures to speed up<br />
disposals with special<br />
attention to cases of<br />
massive and gruesome<br />
atrocities<br />
need to actively help in and contribute<br />
to the control and elimination<br />
of atrocities and untouchability. This<br />
task should not be left only to the<br />
Dalits. Leaders of the executive, both<br />
political executive as well as permanent<br />
civil executive, can bring about<br />
a zero-atrocity and a zero-untouchability<br />
situation in the country if they<br />
take pro-active interest in extirpating<br />
these twin blots on India’s face which<br />
are sapping national energy and<br />
optimal national progress. For example,<br />
if the political heads of the State<br />
at the national and state levels can<br />
spend even five minutes in their<br />
tours to different parts of the country<br />
and enquire in public view and hearing<br />
about the atrocity situation and<br />
particularly about major cases and<br />
the progress of action taken in<br />
respect to them, it will have an electrifying<br />
effect on the entire system. A<br />
few minutes with victims of atrocities<br />
will help lift the morale and selfconfidence<br />
of the long-suffering<br />
Dalits. This is also true of the heads<br />
of civil administration at the national,<br />
state, district and intermediate<br />
levels and the heads of the police<br />
forces at all levels. They now have, in<br />
the NREGA, an instrument, very<br />
effective if instituted promptly in<br />
every village where atrocities take<br />
place, to counteract social and economic<br />
boycott and blackmail which<br />
intend to cow down victims, survivors<br />
and other possible witnesses.<br />
The heads of local bodies, both rural<br />
and urban, can make an intense contribution<br />
within their areas and thus<br />
make Panchayati Raj more meaningful<br />
for Dalits.<br />
During the campaign it must be<br />
brought home to educated members<br />
of civil society that continued neglect<br />
in curbing atrocities and untouchability<br />
will not only heap continued<br />
human injustice on Dalits but also<br />
sap India’s potential for growth and,<br />
therefore, it is in their own enlightened<br />
self-interest to actively cooperate<br />
with Dalit and human rights<br />
organisations and activists in eliminating<br />
atrocities and untouchability.<br />
Possible help 2<br />
The higher judiciary can play a<br />
decisive helping hand in certain<br />
aspects of atrocities and untouchability.<br />
For example, the high courts in<br />
their capacity as overall superintendence<br />
of lower courts may, it is<br />
respectfully suggested, consider<br />
measures to speed up disposals with<br />
special attention to cases of massive<br />
and gruesome atrocities, and creation<br />
of possible special arrangements<br />
for clearance of arrears, and<br />
meanwhile ensure full physical and<br />
economic protection for the victims,<br />
complainants and witnesses (the<br />
importance of this emerges from the<br />
findings of the committee of 1920<br />
referred to earlier and has been<br />
poignantly brought home again<br />
recently by the Kambalapalli case<br />
acquittals in Karnataka) — in some<br />
cases this protection may need to<br />
cover a whole community under<br />
attack or threat in a village or tract.<br />
(a) Provision of guidance to vastly<br />
minimise acquittals so that there is<br />
18<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
no significant gap between reality as<br />
widely known and trial-outcomes. In<br />
this context chief justice (Rtd) A S<br />
Anand’s observation while delivering<br />
Bhimsen Sachar Memorial<br />
Lecture on 03.12.2005 as the then<br />
chairman of NHRC, that the present<br />
situation “resulted in the citizen getting<br />
tempted to take the law into his<br />
own hands and take recourse to<br />
extra-judicial methods to settle<br />
scores and seek redress of his<br />
grievance”, is very relevant. [In this<br />
context it may be recalled, not<br />
approvingly but as a warning, that<br />
the first accused in the Kilavenmani<br />
case who was acquitted with all other<br />
accused, was murdered on the 10th<br />
anniversary of the atrocity and a<br />
prominent personality of<br />
Karamchedu, who was believed by<br />
Dalits to be the main person behind<br />
the Karamchedu atrocity but was not<br />
even chargesheeted was also later<br />
murdered, the Naxalites claiming<br />
credit for it and getting popularity at<br />
the cost of established democratic<br />
institutions].<br />
(b) Utilisation of the inputs of this<br />
presentation regarding the miserable<br />
plight of the Dalits under the ICS, the<br />
vulnerability of the SCs and STs in<br />
their present existential situation, to<br />
provide a socially realistic perspective<br />
to the lower judiciary in dealing<br />
with atrocities, and in drawing permissible<br />
presumptions in addition to<br />
the mandatory presumption prescribed<br />
by section 8 of the Act, along<br />
lines similar to the way the Supreme<br />
Court and high courts have sensitised<br />
evidentiary evaluation of the<br />
testimonies of rape victims.<br />
(c) Making the record of judicial officers<br />
in dealing effectively with cases<br />
of atrocities (and similarly also PCR<br />
Act cases) a criterion while considering<br />
proposals for elevation to the<br />
Bench of high courts.<br />
For quick disposal of appeals<br />
from judgements and interim orders<br />
of the trial court, institution of special<br />
arrangements similar to the creation<br />
of environment benches.<br />
(d) Arrangements to pass quick<br />
orders in PILs, instituted by Dalit<br />
rights organisations in a number of<br />
high courts and issue of specific<br />
directions to the executive so as to<br />
help move matters effectively<br />
forward<br />
(e) It is also respectfully suggested<br />
This is the twentieth<br />
year since the Act came<br />
into existence. The<br />
Act was passed by<br />
Parliament and received<br />
the assent of President on<br />
September 11, 1989 and<br />
came into force with<br />
effect from January 30,<br />
1990. A number of Dalit<br />
and human rights<br />
organisations feel that<br />
now time should be<br />
utilised to critically<br />
review the performance of<br />
the State and its various<br />
limbs in implementation<br />
of the Act<br />
that the POA Act and the PCR Act<br />
and meeting the challenge of reaching<br />
fully, promptly and effectively<br />
their benefits to the SCs and STs and<br />
ensuring their proper and effective<br />
implementation at the various police<br />
stages upto chargesheeting in courts,<br />
and at the trial stage in courts is a<br />
most deserving and essential area for<br />
activism in the best established traditions<br />
of India’s higher judiciary.<br />
The last word<br />
A recent article on the website of the<br />
China Institute for International<br />
Strategic Studies (CISS), one of the<br />
top ten Chinese thinktanks, shows<br />
that those who bear ill-will towards<br />
India have identified as a critical<br />
weakness of India its caste-based<br />
exploitativeness. It is in the interest<br />
of our country’s security and integrity<br />
to see that this weakness, of which<br />
an important manifestation is atrocities<br />
along with untouchability, is<br />
fully and finally removed.<br />
After a long wait a ray of hope<br />
emerged when in September 2009,<br />
addressing a two-day conference of<br />
state ministers in-charge of SCs, STs,<br />
BCs and social justice, Prime<br />
Minister Dr Manmohan Singh<br />
expressed rude shock over the low<br />
rate of convictions in the cases of<br />
atrocities against SCs and STs. The<br />
prime minister further asked the<br />
state governments, the chief ministers<br />
and the state ministers to give<br />
more attention to this issue, ensure<br />
conduct of meetings of state and district<br />
level vigilance committees on a<br />
regular basis and pursue the cases of<br />
atrocities on priority. It is to be<br />
earnestly hoped that this initiative<br />
will be pursued and carried to the<br />
logical conclusion of zero tolerance<br />
of atrocities against SCs and STs and<br />
untouchability. It is also envisaged<br />
that the services, energies and experience<br />
of the large number of Dalit and<br />
human rights activists working for<br />
this cause in each state will be<br />
utilised and action will be taken on<br />
the various detailed measures<br />
including proposed amendments to<br />
the Act.<br />
Footnotes<br />
1. P. S. Krishnan, “Empowering Dalits for<br />
Empowering India — A Road Map’’. Delhi:<br />
Dr.B.R.Ambedkar Chair in Social Justice,<br />
Indian Institute of Public Administration /<br />
Manak Publications.<br />
2. Based on and expanded from my presentation<br />
on 18.12.2005 at the National Judicial<br />
Colloquium on Disability and <strong>Law</strong> held on<br />
December 17-18, 2005 at New Delhi, organised<br />
by the Human Rights <strong>Law</strong> Network,<br />
New Delhi.<br />
–The author is former Secretary,<br />
Government of India; and<br />
presently Chief Adviser, National<br />
Coalition for Strengthening the PoA<br />
Act and its Implementation; Chairman,<br />
Peoples Commission against Atrocities<br />
on Dalits; Chief Patron, National<br />
Action Forum for Social Justice;<br />
Chief Adviser, National Dalit<br />
Election Watch; and has been in<br />
the field of social justice for<br />
more than 50 years<br />
www.combatlaw.org 19
DALIT RIGHTS<br />
THE STATUS OF IMPLEMENTATION AND NEED FOR AMENDMENTS IN<br />
PREVENTION OF ATROCITIES ACT, INDIA<br />
In the context of 20 years of<br />
SC&ST (Prevention of Atrocities) Act, 1989<br />
Dr. Sirivella Prasad<br />
250000<br />
Extent of atrocities<br />
200000<br />
Given the observation made by MHRC in its report<br />
2002 that "under reporting is a very common phenomenon<br />
and police resort to various machinations<br />
to discourage Scheduled Castes/Scheduled Tribes<br />
from registering case, to dilute the seriousness of<br />
the violence, to shield the accused persons from<br />
arrest and prosecution" – extent of atrocities on<br />
SCs as per NCRB<br />
No. of Atrocities on SCs<br />
150000<br />
100000<br />
50000<br />
0<br />
Year<br />
1992-<br />
2000<br />
2001<br />
2002<br />
2003<br />
2004<br />
2005<br />
2006<br />
2007<br />
25<br />
20<br />
19.6<br />
Type of<br />
atrocities<br />
against<br />
Scheduled<br />
Castes<br />
Percentage<br />
15<br />
13.1<br />
10.3 10.5<br />
10<br />
8.6<br />
7.5<br />
6.2<br />
5.2 5.1<br />
4.1<br />
4<br />
5<br />
2<br />
0.7<br />
1.4<br />
0<br />
Land<br />
Employment and Wages<br />
Water<br />
Housing<br />
Education<br />
Health<br />
Atrocities related to<br />
Credit<br />
Hunger<br />
PDS<br />
Political Participation<br />
Festival and cultural participation<br />
Practice of Untouchability<br />
Development Government Programmes<br />
Witchcraft<br />
Robbery<br />
1.7<br />
20<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
Atrocities–<br />
States' Ranking<br />
State<br />
Rajasthan<br />
Gujarat<br />
Madhya Pradesh<br />
Kerala<br />
UP<br />
Andhra Pradesh<br />
Karnataka<br />
Tamilnadu<br />
Orissa<br />
Sikkim<br />
Maharashtra<br />
Pondicherry<br />
Bihar<br />
Haryana<br />
J&K<br />
Rank<br />
I<br />
II<br />
III<br />
IV<br />
V<br />
VI<br />
VII<br />
VIII<br />
IX<br />
X<br />
XI<br />
XII<br />
XIII<br />
XIV<br />
XV<br />
What it violates<br />
■<br />
■<br />
■<br />
■<br />
■<br />
■<br />
Constitutional safeguards (economic, social, educational, cultural,<br />
political, service)<br />
<strong>Law</strong>s enforcing equality and removing disability<br />
● Untouchability Offences Act 1955<br />
● Protection of Civil Rights Act 1955<br />
<strong>Law</strong>s creating deterrence against physical violence<br />
● SC/ST (PoA) Act 1989<br />
<strong>Law</strong>s eliminating of degrading and humiliating customary practices<br />
● Employment of Manual Scavengers and Construction Dry Latrines<br />
(Prohibition) Act 1993<br />
● Devadasi System Abolition Act<br />
<strong>Law</strong>s preventing control over fruits of labour<br />
● Bonded Labour System (Abolition) Act 1976<br />
● Minimum Wages Act 1948<br />
● Equal Remuneration Act 1976<br />
● Child Labour (Prohibition and Regulation) Act 1986<br />
● Inter-state Migrant Workmen (Regulation of Employment and<br />
Conditions of Service) Act 1979<br />
<strong>Law</strong>s curbing unequal distribution of economic assets<br />
● Land reforms laws<br />
● Debt relief legislations<br />
"The incident of assault and abuses is nothing but because he [the victim]<br />
belongs to SC and he is lower in the eye of [the] upper caste Reddy<br />
person accused. The offence is not only against [the victim] but against<br />
society and ultimately the Nation"<br />
– N. Balayogi, Special Sessions Judge - Judgement in Tsundur case<br />
55/S/2003<br />
This quote expresses the very essence of the SCs & STs<br />
(Prevention of Atrocities Act)<br />
Objective of the PoA Act<br />
Introducing the Bill in Parliament<br />
The normal provisions of the existing laws like, the Indian Penal Code and Protection of Civil Rights Act, 1955<br />
have been found inadequate to check atrocities continuing the gross indignities and offences against<br />
Scheduled Castes and Tribes. Recognising these, introducing this Act - Scheduled Caste and Scheduled<br />
Tribe Prevention of Atrocities) Act, 1989<br />
The preamble of the Act states<br />
" to prevent the commission of offences of atrocities against the members of Scheduled Castes and Tribes, to<br />
provide for special courts for the trial of such offences and for the relief and rehabilitation of the victims of<br />
such offences and for matters connected therewith or incidental thereto."<br />
www.combatlaw.org 21
DALIT RIGHTS<br />
What are the features of SC/ST (PoA) Act<br />
■<br />
■<br />
The term "atrocity" (clarification of home ministry)<br />
Creation of new types of offences<br />
● Enlarges the area of criminal liability and includes several acts of omissions, which were neither covered<br />
under IPC nor PCR Act.<br />
■ Commission of offences only by specific persons<br />
● Defining paradigm of this Act lies in the caste identification of both the offenders and victims<br />
■ Protection of various kinds of atrocities<br />
■ Administrative measure<br />
● Special courts, provision for appointment of special PP<br />
■ Special feature of the Act<br />
● Extern potential offenders<br />
● Attachment of movable or immovable property or both properties<br />
● Prohibits grant of anticipatory bail<br />
■ Enhanced punishment for some offences<br />
■ Enhanced minimum punishment for public servant<br />
■ Compensation for victims or their legal heirs<br />
■ Various preventive measures<br />
Gaps in implementation of SC/ST PoA Act<br />
1989 AND RULES 1995<br />
1. Under reporting of the cases under the Act and deterred from making complaints of atrocities<br />
2. Cases not registered under appropriate sections of the PoA Act<br />
● 67% of cases during 1992-2000 and 64.9% during 2001-2007 were not registered under SC and ST<br />
(PoA) Act - NCRB 2007<br />
3. Delay in filing chargesheet<br />
●The high court of Andhra Pradesh in an interim order on the writ petition observed - "the statistics furnished<br />
by the director general of police shows that one case registered under this Act is pending investigation<br />
for the last almost six years, 4 cases pending investigation for last five years, 18 cases are pending<br />
investigation for over four years, 31 cases are pending investigation for over three years. 190 cases are<br />
pending investigation for almost two years and 805 cases are pending investigation for about one year."<br />
WP No. 1019 of 2006 filed by Sakshi<br />
4. Not arresting accused<br />
● Justice Punnaiah Commission observed that the sub-inspectors or circle-inspectors did not arrest the<br />
assailants who committed the atrocities even though, the former recorded FIRs and registered cases.<br />
5. Accused are invariably released on bail<br />
● In 50-60% cases the judge invariably concluded that SC/ST people's evidence is not valid because they<br />
are an interested party - NCSC<br />
6. Filing false and counter cases against Dalit victims<br />
7. Compensation prescribed under the Act is invariably not paid<br />
● NHRC Report (2002) observes that "the breach of duties by civil administration is committed in the following<br />
manner:<br />
● Not conducting an enquiry, thereby evading duty to give relief and compensation,<br />
● Making false promises to give compensation and delay in distributing cash compensation,<br />
● Not providing allowances, such as T/A relating to trial and investigation for witnesses and victims, mainte-<br />
22<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
nance expenses and D/A, medical expenses, etc.<br />
8. No access to legal aid<br />
NCSC has found that no such special legal assistance as envisaged by the Act of 1989 was extended to<br />
SCs and STs even in one of the thousands of cases looked into by the body<br />
9. Investigation not done by the competent authorities<br />
As per the NHRC report the progress of investigation of cases by police analysed from the official<br />
data indicates:<br />
● Number of charge-sheeted cases was 53.04%,<br />
● 22.54% of cases were closed after investigation<br />
● 24.42% number of cases pending with police at the end of the year<br />
● 30,350 cases registered during 2000 as many as 8,336 cases were closed after investigation without<br />
any trial<br />
● 9,027 cases where still pending investigation.<br />
● 1,43,505 cases in courts for the year 2000, 1,32,268 cases were pending, 9,996 were acquitted and<br />
● 1,241 ended in conviction.<br />
10.Non-implementation of statutory provisions<br />
Provisions<br />
States<br />
implemented<br />
States not<br />
implemented<br />
Rule 3–Precautionary and Preventive Measures 11 23<br />
Rule 8–SC/ST Protection Cell 17 17<br />
Rule 9–Nodal Officer 29 5<br />
Rule 10–Special Officer 14 20<br />
Rule 15 (1)–Contingency Plan by State Government 9 25<br />
Rule 16–State Level Vigilance and Monitoring Committee 21 13<br />
Rule 17–District Level Vigilance and Monitoring Committee 21 13<br />
Section 14 Special Courts 9 25<br />
Source: Reports of Ministry of Social Justice&Empowerment<br />
11.Seeking justice before the law<br />
12.Advisories issued by ministry of SJE and ministry of home affairs<br />
Need for campaign to strengthen PoA Act<br />
and its implementation<br />
■ Need<br />
● to critically review its performance in the realisation of its objectives<br />
● To incorporate some judicious amendments to the SC/ST Act, 1989 and Rules, 1995 based on<br />
20 years of experience<br />
● To address non-implementation<br />
■ SO<br />
● Initiated a national coalition for strengthening of PoA Act<br />
www.combatlaw.org 23
DALIT RIGHTS<br />
Proposed draft amendments<br />
The proposed amendments can broadly be divided into the following categories<br />
1. Amendments proposed to enhance punishment<br />
2. Amendments proposed for omission of certain words<br />
3. Amendments proposed for addition of new types of offences<br />
4. Amendments proposed for insertion of new words<br />
5. Amendment proposed to strengthen section 4<br />
6. Scope of definitions given in the Act<br />
7. Amendments proposed for special courts and special prosecutors<br />
8. New chapter on rights of victims and witnesses as chap II A<br />
9. National/state protection and monitoring authority<br />
1. Amendments proposed to enhance punishment<br />
Bringing punishment at par with IPC<br />
Offence under section 3(1)<br />
■<br />
■<br />
Punishable with imprisonment for a term which shall not be less than six months but which may<br />
extend to five years and with fine.<br />
Proposed amendment: punishable with imprisonment for a term which shall not be less than two<br />
years but which may extend to seven years and with fine.<br />
2. Amendments proposed for addition of new types of offences<br />
Inserting new offences in existing sections<br />
■<br />
■<br />
■<br />
Manual scavenging, refusal to pay wages in accordance with the minimum wages prescribed by the government<br />
or contract wages for the labour, such contract wages not less than the minimum wages fixed by the<br />
government - in sec 3(1)(vi)<br />
After the poll causes injury, insult or commits any offence under this Act against a member of Scheduled<br />
Caste and Scheduled Tribe for voting or not voting to a particular candidate or for voting in a manner<br />
provided by law - sec. 3(1)(vii)<br />
Files cases against the victims of atrocities or his/her relatives shortly before or after the offence of atrocity<br />
to force them to desist them from making complaint or withdraw a complaint, or files cases against the<br />
witnesses or his/her relatives shortly before and after the offence of atrocity to prevent them from deposing<br />
evidence or to force them to depose false evidence in any case of atrocities - sec. 3(1)(viii)<br />
New sections for the offences<br />
● Social economic boycotts and blackmails, grievous hurt, kidnaps, or wrongfully restrains, discriminates<br />
against or humiliates any children in anganwadis or mid-day meals programme in schools or any other educational<br />
institutions, rape, minor girl rape, mass rape, gang rape, murder, mass murder<br />
3. Amendments proposed for omission of certain words<br />
● delete the words 'intent' and 'intention' or 'on the ground' from sections 3(1)(ii), 3(1)(x),<br />
24<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
3(1)(xi), 3(2)(i), 3(2)(ii), 3(2)(iii), 3(2)(iv) and 3(2)(v) and also word 'public view' and 'public place'<br />
from section 3(1)(x).<br />
4. Amendments proposed for insertion of new words<br />
● In sec. 3(2)(v), 3 (2)(vii) -public servant, Sec 10(1), sec 21 (2) (i)<br />
5. Amendment proposed to strengthen section 4<br />
● Defined negligence<br />
6. Scope of definitions given in the Act<br />
● only for the purpose of this Act also include<br />
● members of the any of the castes in the schedule who profess a religion other than Hinduism,<br />
Sikhism, or Buddhism<br />
● who migrated to other states for the purpose of manual labour but not included in the scheduled<br />
of the state<br />
7. Amendments proposed for special courts and special prosecutors<br />
● Establish exclusive special courts and appoint exclusive special PPs<br />
● Day to day trial and should complete within 90 days after chargesheet<br />
● Special courts are empowered to take cognizance of offences<br />
● Spl court judge report to chief justice of HC<br />
● Joint trail or simultaneous trail other cases filed against victims - counter cases<br />
● Post of judges and public prosecutors should not keep vacant more than 30 days<br />
8. New chapter on rights of victims and witnesses as chapter II A<br />
● Mandatory registration of FIR, investigation and inquiry, protection, medical examination and reports,<br />
chargesheet, trial, documents and information<br />
9. Establishing national monitoring and enforcement authority<br />
● Administration ignores social boycott of Scheduled Castes which leads to denial of employment and<br />
access to basic necessities like ration shop, refusal to buy or sell any goods in the village, etc<br />
– Dr Prasad is general secretary, NDMJ-NCDHR<br />
Courtesy: National Coalition for Strengthening PoA Act<br />
www.combatlaw.org 25
DALIT RIGHTS<br />
Implementation of SC/ST (POA) Act and rules<br />
Recommendations for better enforcement<br />
Stage of<br />
the case<br />
Gaps in enforcement<br />
Recommendation<br />
Responsibility<br />
At the stage<br />
of incident<br />
Pressure on victims for<br />
not lodging the complaint;<br />
Threatening victims not to<br />
speak about the incident;<br />
The DGP/RDO/District<br />
Magistrate/SP do not visit<br />
the place of occurrence as<br />
per Rule 6. Rather, constable/SI/CI<br />
visit the place of<br />
occurrence based on gravity<br />
of offence;No immediate<br />
relief / protection is<br />
given to the<br />
victims;Tampering of the<br />
evidence;Registering<br />
counter cases of other<br />
caste people without registering<br />
the case of Dalit<br />
victims;Giving early date<br />
and time to the dominant<br />
caste complaint than a<br />
Dalit victim's case and<br />
registering the counter<br />
case first.<br />
Mechanism to monitor the implementation of<br />
Rule 6. The SP should inform the DGP/IG<br />
and Convener of the State Monitoring and<br />
Vigilance Committee (SMVC) regarding incidents,<br />
date of visit, measures taken. (As per<br />
crime records, 3,000 cases are being registered<br />
every year which means 9-10 cases per<br />
day in the state. Officers can easily monitor<br />
9-10 cases per day);<br />
Immediate relief and protection to the victims<br />
(In para 28 of AP police guidelines on<br />
SC/ST (POA) Act, a clause should be included<br />
that not visiting /providing immediate<br />
relief and protection to the victims and<br />
informing the DGP/and convener of SMVC<br />
can be considered as willful negligence of<br />
duty of the concerned district level officials<br />
and state level officials and action can be initiated<br />
as per section 4 of POA Act /state<br />
level);<br />
Police department should evolve guidelines<br />
to register counter cases like the concerned<br />
SHO should conduct preliminary investigation<br />
on the counter complaint and inform the<br />
concerned authorities;<br />
Registering the case on the counter complaint<br />
with the permission of higher authorities;<br />
The competent authority as per the Act can<br />
carry out the investigation of both cases at a<br />
time.<br />
Permission to arrest the accused in th counter<br />
cases;<br />
Ensure the district superintendent promptly<br />
visits place of occurrence of atrocity and fulfills<br />
his responsibilities under Rule 12(1), (2)<br />
& (3), of POA Act particularly<br />
(Recommendation -- Dalit Human Rights<br />
Monitor (DHRM), SAKSHI Human Rights<br />
Watch 2003);<br />
In each district appoint a special superintendent<br />
of police (SP) depending on the intensity,<br />
frequency and distribution of atrocities in<br />
the district. The official is to be specially incharge<br />
of investigating atrocities under the<br />
Act. (Recommendation -- Dalit Human<br />
Rights Monitor (DHRM), SAKSHI Human<br />
Rights Watch 2003);<br />
For each district, these special SPs should<br />
also be empowered to receive and address<br />
complaints of violations and complaints of<br />
official misconduct under the Act.<br />
(Recommendation - DHRM, SAKSHI Human<br />
DGP/state level<br />
vigilance<br />
monitoring<br />
committee<br />
2. DGP<br />
3. SHO<br />
DSP/RDO/SP<br />
DGP<br />
Commissioner<br />
SW/Collector<br />
26<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
Implementation of SC/ST (POA) Act and rules<br />
Recommendations for better enforcement<br />
Rights Watch 2003);<br />
In all cases of atrocities, immediate<br />
relief, rehabilitation and compensation<br />
should be provided keeping in view<br />
the mandate of Parliament (National<br />
SC/ST Commission Report, 1998-99)<br />
At the stage<br />
of complaint<br />
Delay in filing the complaint;<br />
Refusal to write the complaint<br />
of the victims by the<br />
police officials;<br />
Writing the complaint in<br />
favour of the accused without<br />
giving necessary<br />
details and not reading out<br />
to the complainants;<br />
Inappropriate behaviour<br />
with the victims (threatening,<br />
not attending immediately);<br />
Registration of the complaint<br />
based on the perpetrators'<br />
version.<br />
Issue receipts of all the complaints of<br />
the victims immediately, indicating<br />
time and date with a copy of the complaint;<br />
After reading out the complaint to the<br />
victim the copy should be signed by<br />
two witnesses along with the victim;<br />
Refusal to record /write the complaint/<br />
not behaving properly shall be considered<br />
as willful negligence besides nonfiling<br />
of case or registering case not<br />
under proper sections as negligence in<br />
para 28 of the AP Police guideline on<br />
SC/ST Act;<br />
All complaints given by Dalits should<br />
be registered as an FIR, by forbidding<br />
discretionary powers to the officer<br />
responsible for registering complaints.<br />
(Recommendation - DHRM, SAKSHI<br />
Human Rights Watch 2003);<br />
State governments may notify a lady<br />
officer from among the staff posted in<br />
each block, such as the Social Welfare<br />
Officer or Women & Child<br />
Development Officer to entertain complaints<br />
regarding the ill-treatment of<br />
and violence committed against SC<br />
women not registered by the competent<br />
authority and officially pass it on<br />
to the concerned authority with a copy<br />
to the District Magistrate for taking up<br />
necessary investigation (NHRC 2002).<br />
SHO/SP<br />
SHO/SP<br />
DGP/SVMC<br />
At the stage<br />
of FIR<br />
Refusal in registering an<br />
FIR by police officials;<br />
Cases not registered under<br />
proper sections;Not including<br />
necessary details in the<br />
FIR (facts, figures,<br />
words/delete the names of<br />
the accused /weapons used<br />
/accused list, their details);<br />
Misleading the victims by<br />
not registering an FIR; Not<br />
All the FIRs should be scrutinised at<br />
the district monitoring vigilance level;<br />
Evolve mechanism at district level to<br />
scrutinise all registered FIRs, whether<br />
registered under proper sections or<br />
not, all details of complaint are included<br />
etc and whether necessary action<br />
was initiated against erring officers and<br />
send the report to DGP/CSMVC;<br />
Should set up SC/ST cell in all police<br />
stations to book FIRs. (Punnayya<br />
DMVC/SP<br />
DGP<br />
SHO/SP<br />
SP/DGP/<br />
SVMC<br />
SP/DGP/ SVMC<br />
www.combatlaw.org 27
DALIT RIGHTS<br />
Implementation of SC/ST (POA) Act and rules<br />
Recommendations for better enforcement<br />
issuing copy of the FIR to<br />
the victims as per SC/ST<br />
(PoA) Rules 1995.<br />
Commission, 2002)<br />
All offences against Dalits by non-<br />
Dalits should be registered under<br />
the SC/ST (PoA) Act.<br />
(Recommendation - DHRM, SAK-<br />
SHI Human Rights Watch 2003);<br />
Prompt disciplinary and legal<br />
action under Section 4 SC/ST (PoA)<br />
Act should be taken against police<br />
who refuse to register cases under<br />
the Act as they are directed to do<br />
under Rule 5(1). (Recommendation<br />
- DHRM, SAKSHI Human Rights<br />
Watch 2003);<br />
All cases registered under<br />
Protection of Civil Rights Act to be<br />
r/w. SC/ST (Prevention of Atrocities)<br />
Act. (Recommendation - DHRM,<br />
SAKSHI Human Rights Watch<br />
2003);<br />
In case the office in-charge of the<br />
concerned police station does not<br />
register an FIR on the basis of a<br />
complaint but the FIR is registered<br />
at the instance of the superintendent<br />
of police or special enquiry cell<br />
or the court and the charge sheet is<br />
submitted before the court, appropriate<br />
action under the Act or<br />
departmental action as the case may<br />
be, should be taken against the officer<br />
in-charge of police station for<br />
not registering the case in time.<br />
(National SC/ST Commission<br />
Report 1998-99);<br />
Involvement of competent NGOs<br />
with good track record and known<br />
commitment to the welfare of<br />
Scheduled Castes is necessary to<br />
counter official apathy and bias in<br />
dealing with cases of atrocities, provide<br />
necessary feedback to the<br />
implementing agencies and extend<br />
support to the victims in registration<br />
of cases, pursuing prosecution<br />
at various stages and rehabilitation<br />
after the incident, besides intervening<br />
in time to prevent such violence<br />
(NHRC 2002);<br />
A copy of an FIR should be provided/<br />
dispatched or made available to<br />
the complainant at earliest possible<br />
means as per the 416-11 F of AP<br />
Police Manual;<br />
Direct the police to provide a copy<br />
28<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
Implementation of SC/ST (POA) Act and rules<br />
Recommendations for better enforcement<br />
of remand report, charge sheet and<br />
final report to the victims and<br />
witnesses.<br />
At the stage<br />
of arrest<br />
Not arresting the accused<br />
immediately;<br />
Not arresting all the accused<br />
and giving space to abscond/<br />
to get anticipatory bail;<br />
Police informing the accused<br />
before registering the case;<br />
Giving bail and anticipatory<br />
bail;<br />
Arresting Dalit victims in<br />
counter cases instead of arresting<br />
dominant caste persons.<br />
Superintendent of Police, District<br />
Monitoring and Vigilance Committee<br />
(DMVC) should review the status of<br />
arrest at regular interval and inform it<br />
to state level IGP and SMVC<br />
IGP/SVMC<br />
At the stage<br />
of investigation<br />
Not investigating the case in<br />
time;<br />
Investigation is not being done<br />
by a competent authority;<br />
All the victims, witnesses are<br />
not covered under investigation;<br />
Police officials are not entering<br />
all the details narrated by the<br />
victims and witnesses in the<br />
statements;<br />
Victims are not provided protection<br />
during and after investigation;<br />
Not informing the victims and<br />
witnesses about the date and<br />
time of IO's visit;<br />
Statements being recorded by<br />
lower level officials but the<br />
charge sheet is filed by the<br />
competent authority;<br />
Delay in providing documents<br />
(postmortem certificate,<br />
wound certificate) to the victims;<br />
Completing the investigation<br />
in counter cases faster than the<br />
investigation in SC/ST (PoA)<br />
Act cases;<br />
Non- cooperation of<br />
victims/witnesses/ compromise/<br />
death of accused;<br />
Recording statements without<br />
meeting concerned persons.<br />
There should be a time limit to provide/collect<br />
necessary medical certificates<br />
and other documents and should<br />
be consider as negligence if exceeds<br />
the time;<br />
PCR cell should have mechanism to<br />
review and scrutinise the reports<br />
based on FIR/ details of<br />
complaint/statements/ documents and<br />
action to be initiated against the erring<br />
officials.<br />
After investigation, if retaliation takes<br />
place, the IO must be made responsible<br />
for the incident;<br />
Special investigation cells may be created<br />
for speedy investigation of SC/ST<br />
atrocity cases (Punnyya Commission<br />
Recommendations 2002);<br />
In cases under SC/ST (PoA) Act,<br />
ensure investigating officer is no less<br />
than the Deputy Superintendent of<br />
Police (DSP), pursuant to Rule 7(1).<br />
(Recommendation - DHRM, SAKSHI<br />
Human Rights Watch 2003);<br />
The case of atrocity should be investigated<br />
by an experienced DSP, even if<br />
he is not having a territorial jurisdiction<br />
for normal day-to-day work.<br />
(SC/ST Commission Report 1998-99)<br />
SP<br />
IGP<br />
SP/DGP<br />
DGP<br />
DGP<br />
www.combatlaw.org 29
DALIT RIGHTS<br />
Implementation of SC/ST (POA) Act and rules<br />
Recommendations for better enforcement<br />
At the stage<br />
of chargesheet<br />
Delay in getting approval<br />
from higher authority;<br />
No corroboration between<br />
the statements collected and<br />
chargesheet;<br />
Deleting sections of SC/ST<br />
PoA Act in chargesheet;<br />
No mechanism in judiciary<br />
to monitor filing of<br />
chargesheet;<br />
Charges are framed without<br />
looking at the related corroboration<br />
(corroboration<br />
with chargesheet and FIR);<br />
Outsourcing preparation of<br />
chargesheet.<br />
The District Judge and SP should<br />
review status of the chargesheets;<br />
Legal opinion, higher officials'<br />
approval are not needed in all cases. If<br />
needed, time limit must be there, the<br />
persons involved must be held responsible<br />
accountable for the delay;<br />
The Special Enquiry Cell set up under<br />
the provision of rule 8 of the Rules 1995<br />
should be given special powers to register<br />
the FIR, investigate and submit<br />
charge sheet/final report before the special<br />
court. The cell should be provided<br />
at least primary requirements like sufficient<br />
stationery, typewriter, telephone<br />
and vehicles, etc. (SC/ST Commission<br />
Report 1998-99)<br />
DJ/SP/DGP/<br />
SVMC<br />
DGP<br />
DGP/Govt<br />
At the stage<br />
of trial<br />
No special courts / PPs in<br />
all districts;<br />
Inordinate delay in trial;<br />
Certain witnesses are not<br />
involved at the time of trial;<br />
No briefing to victims and<br />
witnesses by PPs and not<br />
giving sufficient time;<br />
No information was given<br />
to victims/ witnesses about<br />
the date and time of trial;<br />
Victims and witnesses are<br />
pressurised to turn hostile.<br />
There should be time limit for trial;<br />
Setting up special courts/ panel of PPs<br />
in all districts;<br />
Director of prosecution should review<br />
the performance of PPs and submit<br />
report to SMVC and action should be<br />
initiated against under performing PPs;<br />
Collector and SP should review the<br />
trial process and PPs and IOs to be<br />
made accountable for the absence of<br />
victims and witness during the trial;<br />
SPs and collectors to be made accountable<br />
for victims and witnesses turning<br />
hostile;<br />
Proper training should be given to the<br />
witnesses one day prior to the trial and<br />
IO should take them to the public prosecutor<br />
one day before the trial<br />
(Punnayya Commission 2002);<br />
The Collector should review at the end<br />
of every quarter about the performance<br />
of PP and send it to the state government<br />
to assess the number of acquittals.<br />
(Punnayya Commission 2002);<br />
States need to constitute exclusive special<br />
courts for dealing with atrocity<br />
cases in districts. Special public prosecutors<br />
for this work may be selected on<br />
the basis of their competence and commitment<br />
and their level of remuneration<br />
should be adequate to sustain their<br />
interest in work (NHRC 2002).<br />
Gov<br />
Gov<br />
Dir Prosecution<br />
Collector/SP<br />
SMVC<br />
SP/DGP<br />
Collector<br />
At the stage<br />
of judgement<br />
No appeal from<br />
PPs/Collector/SP<br />
PPs /Collector/SP must ensure further<br />
appeals in the higher courts and to be<br />
Collector/SP<br />
30<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
Implementation of SC/ST (POA) Act and rules<br />
Recommendations for better enforcement<br />
and follow up<br />
made accountable for not filing appeals;<br />
DMVC should review the judgements and<br />
take necessary steps for appeal;<br />
PPs /Collector/SP must ensure for better performance<br />
of the special courts, and to<br />
improve the rate of conviction, as per the<br />
Rule; The Chief Justice of high court should<br />
depute a sitting high court Judge to review<br />
the working of the special courts and judgements<br />
delivered by these courts, at least once<br />
in a year. The judicial review would ultimately<br />
highlight all those legal and administrative<br />
aspects/facts responsible for acquittal of<br />
accused, weak prosecution and the quality of<br />
judgements (SC/ST Commission 1998-99)<br />
Collector<br />
CJ of HC<br />
At the stage<br />
of TA / DA/<br />
compensation<br />
Victims not paid<br />
TA/DA/wage during<br />
investigation, trial;<br />
Victims not paid medical<br />
expenses;<br />
Victims not paid compensation<br />
and immediate<br />
relief as per SC/ST (PoA)<br />
RULES 1995.<br />
Appointment of assistant social welfare<br />
officier at mandal level and made accountable<br />
for dispersing the TA/DA /minimum<br />
wages and compensation and should be<br />
monitored by the Collector and DMVC;<br />
Separate funds to be given to PS/courts<br />
towards TA/DA of victims and witnesses at<br />
FIR investigation and to be monitored by<br />
the SP/DJ;<br />
Necessary arrangements for providing travelling<br />
and maintenance expenses, reimbursement<br />
of the payment of medicines, special<br />
medical consultation fee, blood transfusion,<br />
etc. should immediately be made to the victims<br />
of atrocity. (SC/ST Commission<br />
1998-99);<br />
State/ National Human Rights Commission<br />
may monitor provisions regarding payment<br />
of compensation to victims of atrocities and<br />
their rehabilitation (NHRC 2002);<br />
States may be directed to make the District<br />
Magistrate solely responsible for ensuring<br />
that the compensation money given to the<br />
victims is effectively utilised to provide sustainable<br />
rehabilitation;<br />
The parameters of such rehabilitation may be<br />
laid down in the manual. State and district<br />
level monitoring and vigilance committees<br />
may monitor the status of rehabilitation<br />
(NHRC 2002);<br />
Special rapporteurs may report to the State /<br />
National Human Rights Commission about<br />
the status of rehabilitation and morale of victims<br />
of atrocities in important cases<br />
(NHRC 2002).<br />
1. SVMC<br />
www.combatlaw.org 31
INTERVIEW<br />
'Empower Dalits for<br />
Empowering India'<br />
Having played an<br />
instrumental role in<br />
formulating the special<br />
component plan for SCs,<br />
processing the proposal<br />
for the appointment and<br />
facilitating the functioning<br />
of the much talked about<br />
Mandal Commission and<br />
conceptualising and<br />
operationalising the SC<br />
and ST (PoA) Act, this<br />
civil servant has always<br />
been behind-the-scene of<br />
some of the historical<br />
initiatives that have<br />
positively impacted the<br />
lives of millions of Dalits<br />
in India. PS Krishnan<br />
dwells at length on the<br />
genesis, relevance and<br />
implemetation of the PoA<br />
Act in conversation with<br />
Harsh Dobhal and<br />
Vipin Mathew Benjamin<br />
● You played a major role in bringing<br />
the Scheduled Castes and Scheduled<br />
Tribes (Prevention of Atrocities) Act<br />
into existence. How was your experience<br />
while doing this -- what did you<br />
go through, how did you perceive the<br />
problems as to put them down in<br />
terms of an Act to seek remedies?<br />
The genesis of the PoA Act has to be<br />
traced in the spate of atrocities that<br />
took place in the sixties. A very major<br />
incident in this connection was the<br />
Kilavenmani massacre in Thanjavur<br />
district in which 42 Dalits were burnt<br />
to death on the night of December 24,<br />
1968. The issue was rooted in an agriculture<br />
wage dispute. The Dalits,<br />
who constituted the main community<br />
of agricultural labourers in that<br />
area sought better wages than what<br />
they were paid and the landlords but<br />
as usual resisted and resorted to<br />
measures which created tensions. As<br />
a result, these Dalits, mainly women,<br />
children and old people, were<br />
burned to death. Though prior to<br />
that the Ramanathapuram riots had<br />
taken place in 1957 but they did not<br />
receive much attention at the national<br />
level as Kilavenmani did. Another<br />
incident was the killing of a Dalit boy<br />
named Kotesu in Kanchikacherla village<br />
in Andhra Pradesh in 1969.<br />
Similar crimes occurred in various<br />
other states too. Actually atrocities<br />
on SCs had begun earlier but they<br />
were not noticed so much.<br />
One of the ministers in Andhra<br />
Pradesh government at that time, as<br />
to justify the killing of the Dalit boy,<br />
remarked that this is how thieves are<br />
dealt with in villages. This insensitive<br />
remark added fuel to the fire for<br />
it is only a court that can come to a<br />
conclusion whether a particular person<br />
committed theft or not. Nobody<br />
can arrogate to himself the authority<br />
to determine that a boy has committed<br />
theft and to summarily execute<br />
him. Such incidents resulted in clamour<br />
in Parliament.<br />
● You were already a civil servant<br />
by then?<br />
Yes. I joined the IAS in 1956 and concentrated<br />
on issues pertaining to the<br />
plight of Dalits and, through proactive<br />
and sensitive administrative<br />
action, bringing justice to them.<br />
I came to the centre as a joint secretary<br />
in 1977 in the ministry of commerce/industries.<br />
In 1978, the government<br />
created a new post of the<br />
joint secretary in the ministry of<br />
home affairs to deal with SCs and the<br />
BCs. This was in the backdrop of the<br />
spate of atrocities on SCs that took<br />
place in north India from 1977<br />
onwards following the Lok Sabha<br />
elections and the resultant regime<br />
change. This gave some sections of<br />
people in the north a green signal for<br />
committing atrocities on Dalit community.<br />
The most notorious instance<br />
was the Belchi massacre in 1979.<br />
Prior to this, and after<br />
Kilavenmani and Kanchikacherla,<br />
the government had instituted a system<br />
of monitoring the atrocities<br />
against SCs. The IPC crimes committed<br />
against Dalits were monitored,<br />
particularly murder, rape, arson, and<br />
mischief. Under these heads and a<br />
fifth, namely, "other crimes", monthly<br />
reports and figures were obtained<br />
from states and the centre was doing<br />
some sort of overseeing to furnish<br />
replies to questions in Parliament. I<br />
took over the post of the joint secretary<br />
and used this opportunity to initiate<br />
a number of measures required<br />
for the welfare of SCs. One of them<br />
was dealing effectively with atrocities<br />
another was to conceive and create<br />
the special component plan (SCP)<br />
for scheduled castes for their economic<br />
development and securing<br />
their share in the planned development<br />
of the country, both in physical<br />
and financial terms. A new scheme of<br />
central assistance to the scheduled<br />
caste development corporations in<br />
states was also launched. Some of the<br />
states had already got such corporations<br />
and the central assistance revitalised<br />
them. The scheme enabled<br />
such corporations to be set up afresh<br />
in other states. Then there was the<br />
introduction and commencement of<br />
special central assistance to the state<br />
special component plans. Regarding<br />
atrocities, in addition to getting<br />
monthly reports and statistics, I<br />
began the practice of actively pursuing<br />
with the states specific measures<br />
to be taken by them, especially in<br />
major cases of atrocities and also vis-<br />
32<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
INTERVIEW<br />
iting many of the villages where<br />
atrocities took place.<br />
Atrocities continued unabated<br />
after the next regime change in 1980.<br />
During this period, the Pipra atrocity<br />
took place in Bihar, on the intervening<br />
night of February 27-28, 1980.<br />
That was after late prime minister<br />
Indira Gandhi had come back to<br />
power. Immediately after Pipra, I<br />
prepared a letter for the home minister<br />
along with an important enclosure<br />
addressed to the chief ministers<br />
of the states. This letter analysed<br />
atrocities -- why they were taking<br />
place, how they were rooted in the<br />
fact that SCs are agricultural labourers,<br />
their helplessness, their desire<br />
for the fulfillment of some of their<br />
demands regarding land, wages, etc,<br />
and how, when they pursue their<br />
legitimate aspirations, atrocities were<br />
inflicted on them. Resistance to the<br />
practice of "untouchability" and their<br />
attempt to protect the honour of their<br />
vulnerable women also became<br />
provocations for atrocities on the SCs<br />
and STs. This letter along with its<br />
enclosure went to all the state chief<br />
ministers, suggesting preventive,<br />
punitive and rehabilitative measures<br />
in respect of atrocities and personnel<br />
measures, which means how to make<br />
the administrative system of governance<br />
more sensitive to the problems<br />
of SCs and STs including atrocities,<br />
but not only atrocities. These also<br />
provided the raw material from<br />
which later on the rules under the<br />
PoA Act took shape. I personally<br />
looked into every single case of atrocities,<br />
especially massacres, rape,<br />
arson and grievous hurt.<br />
Thus, cases of atrocities got a certain<br />
salience. As a result of the system<br />
of close follow-ups by me at every<br />
stage and communications from different<br />
levels and discussions and<br />
meetings, the Pipra case was tried<br />
very fast by the standards of the<br />
Indian judicial system, which does<br />
not only mean the courts, but also<br />
covers the investigative process, the<br />
prosecution process, actual trial and<br />
what happens in the court. Pipra case<br />
was disposed off in about 16 months<br />
after the massacre took place. A very<br />
large majority of accused were convicted<br />
and sentenced to life imprisonment<br />
and some others to different<br />
terms of incarceration. Along with<br />
this, earlier cases languishing for justice<br />
like Belchi were also pursued in<br />
speed. We could secure conviction in<br />
the Belchi case too. Though there was<br />
no PoA Act at that time, on our suggestion,<br />
the state government set up<br />
special courts and appointed special<br />
prosecutors for specific cases of atrocities.<br />
This helped in ensuring that<br />
these cases were quickly disposed off.<br />
In the case of Belchi, two of those convicted<br />
were sentenced to death.<br />
Perhaps, that was the first time that<br />
anyone was sentenced to death for<br />
massacring SCs in this country. There<br />
was another incident in Hanota,<br />
Madhya Pradesh which was a case<br />
where defiance of "untouchability" in<br />
respect of entry into a temple led to<br />
Among the educated<br />
sections of SCs, there is<br />
a greater amount of<br />
awareness now. They<br />
clearly perceive the<br />
inequity of their lot. This<br />
process had its beginnings<br />
much earlier, even before<br />
Dr. Ambedkar arrived.<br />
He gave it a national<br />
momentum, a perspective<br />
and a philosophical base<br />
an atrocity, in which two of the convicted<br />
were sentenced to death. Then<br />
there was a case in Gujarat where a<br />
boy called Sakhrubai, who for daring<br />
to give expression to his musical talent<br />
during the navratra ceremony<br />
was burned to death because his<br />
singing on that occasion was considered<br />
a sacrilege. That case was disposed<br />
off in 10 months as a result of<br />
the regular case-by-case follow up.<br />
Three of the convicts got life imprisonment<br />
in that case and some of the<br />
accused were acquitted. These<br />
instances show how close case-bycase<br />
follow-up by the centre and<br />
focused action by the state governments<br />
can secure quick trials.<br />
● After death sentences in cases like<br />
Belchi, has there been any recurrence<br />
of atrocities?<br />
After severe punishments in the<br />
above mentioned and other cases,<br />
during 1981-82 there was a lull for<br />
some time. For such chronic diseases,<br />
a one-time dosage is not enough. The<br />
dosage has to be repeated regularly so<br />
that the association of severe punishment<br />
with atrocities against vulnerable<br />
sections gets firmly imprinted in<br />
the minds of potential committers of<br />
barbarity. As the memory of Belchi<br />
and Pipra faded away, atrocities<br />
against Dalits were again on the rise.<br />
In 1988, there were two gruesome acts<br />
in Nonhi-Nagwa and Damuha-<br />
Khagri Tola areas of Bihar. But certainly<br />
there was a salutary effect for<br />
some time after convictions and punishments.<br />
If punishments swiftly follow<br />
a crime, and the punishment is<br />
tailored to the crime, that is, it is as<br />
severe as the crime is brutal, and if it<br />
is consistently done in every state,<br />
then it will have a long-lasting effect.<br />
But even if massacres may stop,<br />
there are still various types of cruelty,<br />
for example, economic boycotts.<br />
There are ample ways of killing without<br />
shedding blood. So, this is a<br />
much larger problem. It is not just a<br />
question of penal punishment, but<br />
how we ensure that the SCs cease to<br />
be dependent on others for their<br />
livelihood. It is not enough that two<br />
percent of SCs become clerks, officers<br />
etc. Majority of Dalits cannot seek<br />
reservation because they are not even<br />
matriculates. Many of them have not<br />
even entered school or have dropped<br />
out early. So, they will continue to be<br />
dependent and vulnerable unless the<br />
State, by a combined central and<br />
state-level effort, ensures that every<br />
rural SC family has a piece of land of<br />
its own, and their lands are brought<br />
under irrigation and are developed,<br />
so that they get two or three crops a<br />
year and, consequently, they do not<br />
have to stretch their hands before<br />
others for their daily livelihood as<br />
wage-labourers. It is possible provided<br />
this is taken up as a mission and<br />
receives the continuous top priority<br />
attention at the highest echelons of<br />
governance from both elected political<br />
executives as well as permanent<br />
civil service executives. If this is<br />
done, then in many places SCs will<br />
be able to gather enough courage and<br />
strength to say no to the invidious<br />
practice called "untouchability" and<br />
refuse to submit to it. Today they are<br />
not able to do so because they have to<br />
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INTERVIEW<br />
think of the next day's wages. So<br />
every Dalit family, which is rural,<br />
must have land of its own and developed<br />
mainly through community<br />
irrigation. This will require both centre<br />
and states to jointly take proactive<br />
initiatives and the former<br />
should not wash its hands off its<br />
responsibility by taking the plea that<br />
land is a state subject under the seventh<br />
schedule of the Constitution.<br />
Then comes education along with<br />
this, so that the next generation of<br />
Dalits can move out to other occupations.<br />
Agricultural labour is not an<br />
occupation of choice. Even farming,<br />
many owner-farmers feel, is not an<br />
occupation of choice. So the State<br />
must help this whole community of<br />
Dalits to move out of what has made<br />
them distinctively a separate underclass,<br />
i.e., out of agricultural labour,<br />
either by becoming self-sufficient<br />
owner cultivators or by moving out<br />
to other occupations with the help of<br />
education. But, we cannot wait for<br />
this process to be completed. Even<br />
while it is in progress, we have to<br />
take action to eliminate atrocities and<br />
"untouchability".<br />
STs are also subjected to atrocities<br />
but not to the same extent as SCs<br />
because the bulk of STs live in areas<br />
where they constitute the majority of<br />
the population. So physical attack by<br />
other sections of society cannot take<br />
place there, but they are exploited<br />
and harmed by means other than<br />
atrocities. STs who are not in their<br />
strongholds are in the same vulnerable<br />
position as SCs.<br />
I left the scene in 1982 on completion<br />
of my term. I am not aware<br />
whether thereafter case-by-case follow-up<br />
was pursued along with general<br />
monitoring. Atrocities continued<br />
in different parts of the country,<br />
mainly because the basic contradictions<br />
in the centuries-old Indian<br />
socio-economic system, continuing<br />
till date, had not been holistically and<br />
comprehensively addressed and also<br />
perhaps case-by-case follow-up by<br />
the centre with the states could not<br />
be maintained at the same tempo.<br />
The agony of the SCs was reflected in<br />
Parliament. Then in 1987, in his independence<br />
day speech at the Red Fort,<br />
the then prime minister Rajiv Gandhi<br />
referred to atrocities and said that if<br />
necessary, he would bring a legislative<br />
enactment to provide for stringent<br />
measures against atrocities on<br />
SCs and STs and to remove any<br />
drawbacks in the legal structure<br />
dealing with such crimes against<br />
Dalits. This was the first time an Act<br />
was spoken of. At that time I was in<br />
Hyderabad and was soon called to<br />
Delhi to take charge as the special<br />
commissioner for scheduled castes.<br />
In this position, which was not executive<br />
but was in the nature of "watchdog"<br />
of the implementation of constitutional<br />
safeguards for the SCs, I<br />
dealt with all aspects pertaining to<br />
the communities including reservation,<br />
but I took atrocities against SCs<br />
STs are also<br />
subjected to<br />
atrocities<br />
but not to<br />
the same<br />
extent as<br />
SCs because<br />
the bulk of<br />
STs live in areas where they<br />
constitute the majority of the<br />
population. So physical attack<br />
by other sections of society<br />
cannot take place there, but<br />
they are exploited and harmed<br />
by means other than atrocities<br />
and STs as a very important part of<br />
my work. I visited a number of<br />
places in different parts of the country<br />
where atrocities had taken place<br />
and to oversee conditions existing<br />
there and the quality of rehabilitation.<br />
After the Damuha-Khagri Tola<br />
massacre of 11 Dalits, I conveyed to<br />
various authorities the need for<br />
quickly enacting the proposed legislation<br />
directly addressing atrocities<br />
against SCs and STs. Hectic consultations<br />
with law ministry officials led<br />
to a detailed exercise of identifying<br />
IPC crimes and drafting of the bill<br />
finally.<br />
In August 1987, an incident happened<br />
in a place called Bendigere, in<br />
Belgaum district of Karnataka where<br />
five people, four of them Dalits were<br />
beaten up black and blue. Obnoxious<br />
things which are even difficult to<br />
mention were put into their mouths.<br />
Forcing SCs and STs to drink or eat<br />
any inedible or obnoxious substance<br />
is now listed in the PoA Act as an<br />
atrocity though it is not in the IPC.<br />
There are some more examples<br />
like social boycott and economic boycott<br />
or social and economic blackmail.<br />
These are real acts frequently<br />
experienced by SCs in villages. Social<br />
boycott includes prohibition on barber<br />
shops and laundries to provide<br />
services which till then are provided,<br />
prohibition on tea-shops to serve tea<br />
and prohibition on shops on selling<br />
any commodity to SCs. Economic<br />
boycott is denial of wage-employment<br />
to SCs who are mostly wagelabourers.<br />
So these are crimes which<br />
have not been included in the Act till<br />
now. Their inclusion is among the<br />
proposal for amendments which is<br />
on the anvil.<br />
Finally, the Act was passed in<br />
September 1989 and came into force<br />
on January 30, 1990. With whatever<br />
limitations it had, this Act was an<br />
important step forward. This was the<br />
first time that the Indian legal system<br />
has directly listed offences against<br />
Dalits which constitute atrocities.<br />
The term atrocity against SCs and<br />
STs entered the Indian penal language<br />
for the first time. Even before<br />
Dalits could realise the significance<br />
of this Act, non-Dalits realised that<br />
this Act is something which they<br />
should take adverse note of.<br />
The Act has certainly helped in<br />
giving a feeling that it provides a<br />
statutory base for looking into each<br />
atrocity and why and how it is happening.<br />
But, unless the Act is accompanied<br />
by necessary institutional<br />
arrangements like the establishment<br />
of special courts exclusively for the<br />
purpose of trial of cases of atrocities<br />
and special judges, carefully selected<br />
or appointed to the special courts,<br />
the benefit of the Act will not be<br />
available in full or adequate measure.<br />
Dr Ambedkar had once said that you<br />
may have the best of constitutions<br />
but it will fail to work if you have<br />
wrong persons in charge. You may<br />
have the best Acts but unless they are<br />
also worked through the right institutions<br />
and right individuals, the<br />
desired results cannot be achieved.<br />
● It is the institutional mechanism<br />
that you are talking about. Similarly<br />
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INTERVIEW<br />
what are the other institutional<br />
mechanisms that should accompany<br />
this particular mechanism because,<br />
we have the example of negligence by<br />
police, with nearly 95 percent cases<br />
resulting in acquittal. Then there is<br />
the Khairlanji case where the SC/ST<br />
Act was not slapped on the perpetrators.<br />
There is no substitute for the top<br />
political leadership taking it as one of<br />
their major tasks. A socially conscious<br />
DGP is enough to galvanise<br />
the entire police force of a state.<br />
Similarly, a committed district collector<br />
is enough to galvanise the entire<br />
district machinery. If the collector<br />
and SP are carefully selected, and<br />
they function in close cooperation in<br />
the matter of atrocities, the situation<br />
will significantly change. In the draft<br />
of the proposed amendments in the<br />
Act, we have said that the investigating<br />
officer, who belong to the police<br />
department, prosecutor, who is a<br />
lawyer, and the judge of the special<br />
court should all be selected on the<br />
basis of their past performance in the<br />
matter of the legitimate rights of<br />
Dalits, especially their right to security.<br />
There are individuals in each of<br />
these categories available in the<br />
country and in each state, and what<br />
is required is to identify them and<br />
place them in charge of things. We do<br />
not seek that they should be partial<br />
to Dalits. Let them be only fair and<br />
just, free from any prejudice or bias.<br />
They should also understand the<br />
social structure and the social processes<br />
which have been historically<br />
inherited. This will require some<br />
training and orientation. For example,<br />
usually in criminal cases,<br />
whether under the IPC or under the<br />
PoA Act, police investigation and the<br />
prosecution presentation in the court<br />
are episodic. That is not enough. It is<br />
necessary to start with the history of<br />
social relations, bring out the fact<br />
that SCs are agricultural labour<br />
castes and poor peasants who are<br />
deprived through the centuries-old<br />
practice of "untouchability", of their<br />
elementary human rights, that they<br />
have in recent times begun asserting<br />
their rights guaranteed to them<br />
under the Constitution, and that this<br />
legitimate assertion of the rights is<br />
considered as provocative by some<br />
people of the dominant sections. The<br />
atrocity under trial should be placed<br />
in that socio-historical context. Then,<br />
the court can appreciate it in the full<br />
and correct perspective. Training and<br />
orientation in this regard needs to be<br />
given to police personnel, lawyers, as<br />
well as Dalit and human rights<br />
activists.<br />
● There is a Dalit chief minister in<br />
Uttar Pradesh, but still a large number<br />
of atrocities are committed there.<br />
The emergence and presence of a<br />
Dalit chief minister by itself cannot<br />
sweep away entrenched social processes<br />
including atrocities. Dalits<br />
One of the main lacunae<br />
in the Act is the absence<br />
of a set up which will<br />
ensure quick trials, viz.,<br />
exclusive special courts<br />
with exclusive sessions<br />
judges, exclusive public<br />
prosecutors, exclusive<br />
investigating officers -<br />
all selected on the basis<br />
of their social sensitivity<br />
and sincerity, free from<br />
any caste bias<br />
alone cannot bring about the change,<br />
but what they can do is to exercise<br />
their franchise more intelligently and<br />
in an informed manner. They have to<br />
be educated to make demands relevant<br />
to themselves from political parties<br />
and at the time of elections from<br />
candidates of political parties in each<br />
constituency. They should be educated<br />
not to seek or accept money or<br />
liquor in exchange for their votes, but<br />
demand and get commitments from<br />
every candidate of political parties to<br />
provide agricultural lands for every<br />
rural family, and high quality residential<br />
schools for children of SCs,<br />
STs and BCs. Such schools already<br />
exist in states like Andhra Pradesh,<br />
but they need to be much more<br />
widespread throughout the country.<br />
Navodaya Vidyalayas with 15 percent<br />
reservation for SCs and 7.5 percent<br />
for STs are not enough.<br />
● What are the main amendments<br />
you seek? What do you think has<br />
gone wrong with the implementation<br />
of Act?<br />
One of the main lacunae in the Act is<br />
the absence of a set up which will<br />
ensure quick trials, viz., exclusive<br />
special courts with exclusive sessions<br />
judges, exclusive public prosecutors,<br />
exclusive investigating officers - all<br />
selected on the basis of their social<br />
sensitivity and sincerity, free from<br />
any caste bias. The lawyers selected<br />
to prosecute these cases should be<br />
paid realistic fees. The special prosecutors<br />
so selected also require some<br />
training. To each public prosecutor, a<br />
young SC or ST lawyer should be<br />
attached. This will help to build up a<br />
cadre of competent SC and ST<br />
lawyers in every state.<br />
● But these amendments are more<br />
geared towards addressing the punitive<br />
part of it once an atrocity has<br />
happened. Khairlanji incident is an<br />
example where a family was not<br />
ready to give up their land. There are<br />
not many measures to prevent atrocities.<br />
Thus, court proceedings and<br />
amendments are more tilting<br />
towards punitive action and not<br />
towards preventive. What is your<br />
take on this?<br />
Prompt and effective punitive action<br />
in every case is itself a preventive<br />
against future occurrence of atrocities.<br />
Strengthening the vulnerable<br />
communities of SCs and STs through<br />
various measures, which I have<br />
explained earlier, are part of preventive<br />
action but not part of the punitive<br />
part of the Act. This is part of the<br />
developmental process, which<br />
requires a lot of inputs - the special<br />
component plan for SCs, the tribal<br />
sub-plan, earmarking of plan outlays<br />
proportionate to the population of<br />
SCs and STs, identification of<br />
schemes required for meeting the<br />
needs and aspirations of and<br />
empowering SCs and STs. Schemes<br />
should be identified on the basis of<br />
their developmental and empowerment<br />
needs and priorities and built<br />
into the central and state plans.<br />
Defence need not be and should not<br />
be violent. The very fact that they are<br />
economically liberated and strengthened<br />
and educationally equipped<br />
and equalised and that they do not<br />
have to depend on others for liveli-<br />
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INTERVIEW<br />
hood will itself constitute peaceful<br />
and effective defence, and will act as<br />
a preventive to atrocities as well as<br />
"untouchability". The consciousness<br />
and fear has to be instilled in political<br />
parties that unless they attend to<br />
these matters, they will be out of<br />
favour with the SCs and STs.<br />
● You have already proposed a draft<br />
that is underway. When do you see<br />
this included in the PoA Act?<br />
Our approach is that we should first<br />
have a reservoir of all the amendments<br />
required to strengthen the Act<br />
and its implementation. These<br />
include, apart from amendments for<br />
ensuring speedy trial, i.e., trial with<br />
deterrent rapidity, amendments to<br />
introduce in the list of atrocities, in<br />
section 3, crimes like social and economic<br />
boycott and blackmail, which<br />
SCs and STs face but are not at present<br />
listed among atrocities, and<br />
amendments to make punishments<br />
more stringent. We are also envisaging<br />
a new chapter on the rights of<br />
victims, including survivors of victims,<br />
and the rights of witnesses.<br />
The Act contains certain mandates<br />
on the State, but these mandates<br />
need to be made clearer, more<br />
elaborate and more specific and<br />
more enforceable like, for example,<br />
the automatic commencement of<br />
NREGA, Bharat Nirman and other<br />
programmes. The next step is to prioritise<br />
the amendments because it<br />
may not be possible to push through<br />
all amendments at one stroke.<br />
Depending on the capacity of our<br />
system to digest, these amendments<br />
have to be moved in manageable<br />
installments. The fulfillment of the<br />
first installment will generate the<br />
momentum for the next one provided<br />
Dalit and human rights activism is<br />
persistent. But, if we are able to create<br />
adequate political interest and<br />
seriousness, and if we are able to get<br />
the top leadership of the ruling political<br />
party and coalition, we might be<br />
able to push through the amendments<br />
in their totality.<br />
● Between 1989 and now, that time<br />
you had played a part in conceiving<br />
that Act and getting it enacted and<br />
now you are seeking amendments to<br />
the Act. What have you seen in this<br />
period of 20 years down the line?<br />
Among the amendments now proposed<br />
are those which I had originally<br />
pressed for in meetings as well as<br />
in writing, but all of them did not<br />
find acceptance at that time. There<br />
are also some new ideas based on the<br />
experience of activists in the field in<br />
the last 20 years.<br />
Among the educated sections of<br />
SCs, there is a greater amount of<br />
awareness now. They clearly perceive<br />
the inequity of their lot. This<br />
process had its beginnings much earlier,<br />
even before Dr. Ambedkar<br />
arrived. He gave it a national<br />
momentum, a perspective and a<br />
philosophical base. Thereafter, the<br />
Our approach is that we<br />
should first have a reservoir<br />
of all the amendments<br />
required to strengthen the<br />
Act and its implementation.<br />
These include, apart from<br />
amendments for ensuring<br />
speedy trial, i.e., trial with<br />
deterrent rapidity,<br />
amendments to introduce<br />
in the list of atrocities, in<br />
section 3, crimes like social<br />
and economic boycott and<br />
blackmail, which SCs and STs<br />
face but are not at present<br />
listed among atrocities<br />
Constitution and the electoral process<br />
have also resulted in enhancing<br />
the level of awareness. The small<br />
middle-class of educated SCs has<br />
been growing, thanks to some educational<br />
measures provided for them.<br />
Apart from the growth of awareness,<br />
there have been some quantitative<br />
changes in objective conditions, but<br />
not qualitative changes. SCs continue<br />
to be agricultural labour castes of<br />
India. STs continue to lose their<br />
lands. BCs who are linked with certain<br />
traditional occupations like<br />
crafts (weaving, blacksmithy, carpentry,<br />
pottery, fishing, stone-cutting<br />
etc.) are losing their occupations<br />
partly because of the advent of technology<br />
over time for which we did<br />
not prepare them and more recently<br />
the globalisation which has been<br />
suddenly landed on them, without<br />
making them capable of standing<br />
their ground against unexpected and<br />
sudden competition.<br />
Awareness among the upper<br />
castes that grave injustice has been<br />
committed on Dalits is yet to make its<br />
appearance. Mahatama Gandhi<br />
made efforts to sensitise the upper<br />
castes, but after him there has been<br />
very little effort at that end. The<br />
state-run educational system has not<br />
given serious attention to counteract<br />
the negative attitudes engendered<br />
from childhood in the family and<br />
subsequently in the peer groups on<br />
account of the caste system.<br />
Enhancing the morale of the downtrodden<br />
and improving the morals,<br />
that is the social morals of others,<br />
especially of those who are on top,<br />
have to be promoted actively hand in<br />
hand. Human rights education, particularly<br />
Dalit human rights education,<br />
has to be introduced in a graduated<br />
and systematic manner in<br />
schools and continued in colleges<br />
and universities. There is a non-governmental<br />
national institute of<br />
human rights which is trying to do<br />
this. This should be supported but<br />
this is not enough. It is necessary also<br />
to create consciousness in political<br />
parties and their top leaders that we<br />
have to help the SCs, STs and BCs to<br />
survive in order that India survives.<br />
● Are you contemplating the amendments<br />
to introduce various protection<br />
protocols in this particular Act<br />
and what kind of witness protection<br />
protocols you are proposing?<br />
This part of the draft is evolving. The<br />
idea of the importance of victims and<br />
witness protection and support has<br />
been generated and is being given<br />
concrete shape. We had a consultation<br />
on August 11, 2009 which was<br />
followed by a national consultation<br />
with the participation of a large number<br />
of Dalit and human rights<br />
activists on September 11, 2009 and<br />
which will culminate on January 20,<br />
2010. During this period we hope to<br />
have the widest consultation regarding<br />
the measures required to give<br />
effective and practical protection to<br />
victims and witnesses.<br />
Fortunately the issue of witness<br />
protection has become an issue even<br />
outside the Dalit atrocities framework<br />
and it is perceived that even in<br />
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INTERVIEW<br />
the general IPC cases, not connected<br />
with Dalits, fear is turning many witnesses<br />
"hostile". This helps us. If others<br />
require witness protection, Dalit<br />
victims, survivors and witnesses<br />
require much more protection. In the<br />
case of Dalits, coercion takes the very<br />
effective form of social boycott and<br />
economic boycott and threat of such<br />
boycotts. In their case, protection is<br />
required not only for victims, survivors<br />
and witnesses, but for the<br />
whole community. I am envisaging a<br />
specific mandate on the central as<br />
well as state governments in this<br />
regard as part of the amendments.<br />
● The implementation of the Act<br />
rests heavily on the shoulders of<br />
police. Do you think that could have<br />
been the reason behind the adequacies<br />
of non-implementation of<br />
the Act?<br />
If the SP of the district and the DGP<br />
of the state 'will' that this Act shall be<br />
fully, correctly and promptly implemented<br />
at all places with the help of<br />
the police stations, it will be so implemented.<br />
It has happened in some<br />
places in certain periods, depending<br />
on the active interest taken by the<br />
DM and/or the SP.<br />
In criminal offences you cannot<br />
get away from the police because<br />
investigation is done by the police<br />
and can be done only by the police. A<br />
voluntary organisation can, no<br />
doubt, make its local enquiries, but it<br />
cannot substitute for investigation by<br />
the police who alone can file the<br />
charge sheet before the court. The<br />
national commissions for SCs and<br />
STs and their regional officers also<br />
make enquiries and reports. Even<br />
this cannot be a substitute for police<br />
investigation. I, as special commissioner<br />
for SCs, and later as member,<br />
national commission for SCs and STs,<br />
have personally conducted enquiries<br />
in a number of cases like Nonhi-<br />
Nagwa and Damuha-Khagri Tola in<br />
Bihar and Tsunduru in Andhra<br />
Pradesh. The reports of voluntary<br />
organisations and regional officers of<br />
the national commissions will no<br />
doubt be of help in watching and<br />
ensuring that police investigation<br />
does not go awry, but cannot substitute<br />
police investigation as part of<br />
the judicial process. Similarly, trials<br />
can be conducted only by the court<br />
and nobody else can do it. These can<br />
go to special courts but they have to<br />
be part of the judiciary. Our disappointment<br />
with the lackadaisical<br />
manner in which investigations have<br />
generally been conducted (with<br />
exceptions which show the potential)<br />
cannot be a ground for dispensing<br />
with the police, but we have to work<br />
out legislative measures in the shape<br />
of amendments and other measures<br />
which are matters of governance and<br />
administration, to make investigations<br />
and the rest of the process, ending<br />
with the completion of the trial,<br />
efficient in all cases. It should not<br />
In criminal<br />
offences<br />
you cannot<br />
get away<br />
from the<br />
police<br />
because<br />
investigation is done by the<br />
police and can be done only<br />
by the police. A voluntary<br />
organisation can, no doubt,<br />
make its local enquiries, but<br />
it cannot substitute for<br />
investigation by the police<br />
who alone can file the<br />
chargesheet before the court<br />
have to depend on accidental circumstances<br />
like positive social outlook of<br />
an individual district collector or an<br />
individual SP. This is what we are<br />
attempting now.<br />
● In a large number of atrocity-related<br />
cases the place of atrocities is not<br />
declared as an "atrocity-prone area"<br />
so as to reinforce or build up security<br />
for the advantage of the community.<br />
So what kind of amendments you are<br />
contemplating to make for the areas<br />
which are prone to the atrocities?<br />
This particular measure is no doubt<br />
useful, but it has got limitations. In<br />
fact, I do not know whether any area<br />
is free from atrocity- proneness as<br />
atrocities can happen anywhere<br />
when one community is a landless<br />
labour community and the major<br />
landholders belong to one or two<br />
other communities. The juxtaposition<br />
of these two exists in almost all<br />
villages. It is like gunpowder, a spark<br />
is enough to light it. It can happen in<br />
many places. I have brought this out<br />
in my report on the Tsunduru case.<br />
Therefore, merely declaring a place<br />
as "atrocity-prone" is not adequate.<br />
What is more important is to see how<br />
to avoid such a situation of juxtaposition<br />
of a caste of agricultural labourers<br />
and one or two major landowning<br />
castes. That is why it is crucial to see<br />
that all SCs in rural areas are converted<br />
into self-sufficient land-owning<br />
farmers by undertaking a rapid programme<br />
of distributing distributable<br />
lands among them and developing all<br />
their lands by constructing community<br />
irrigation sources as committed by<br />
the CMP/NCMP of 2004 of the UPA<br />
government. Wherever you have got<br />
landless SC tillers and non-SC landholders,<br />
which is virtually everywhere<br />
in non-tribal-area India,<br />
you have a potential atrocity-prone<br />
situation.<br />
● After this ongoing campaign for<br />
amendments under the PoA Act,<br />
what other initiatives do you plan to<br />
undertake?<br />
Not after this, but simultaneous and<br />
along with this. Our agenda does not<br />
consist only of prevention and penalisation<br />
of atrocities. The process of<br />
development and empowerment of<br />
SCs and STs has many aspects. One<br />
pertains to land distribution and<br />
land development another pertains<br />
to developmental planning, the budget,<br />
the SCP for SCs and the tribal<br />
sub-plan. I have placed ideas and<br />
action points in respect of this aspect<br />
before successive governments.<br />
These find place in various documents<br />
which I have prepared on<br />
behalf of /under the auspices of Dalit<br />
organisations. I have also included<br />
many of these in my recent book<br />
"Empowering Dalits for Empowering<br />
India - A Road Map", so that they can<br />
be available for the information and<br />
guidance of activists, but to get the<br />
government to act in accordance<br />
with them, in accordance with<br />
commitments made in the past and<br />
in accordance with the constitutional<br />
mandate on the State requires<br />
positive pressure which has to be<br />
built up. ■<br />
www.combatlaw.org 37
DALIT RIGHTS<br />
Khairlanji verdict<br />
Whither the Atrocity Act?<br />
While major crimes deserve much severer sentence under the IPC than the maximum<br />
sentence of five years provided in the SC/ST Prevention of Atrocities Act, its<br />
systematic neutralisation in the justice delivery system smacks of a deep rooted<br />
prejudice, as is clearly reflected in much debated Khairlanji verdict. If the justice<br />
delivery system itself is blind to the social reality of caste, the entire exercise of<br />
creating the constitutional structure and cobweb of laws for protecting Dalits becomes<br />
self-defeating, writes Dr Anand Teltumbde<br />
38<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
Entire world knew about Khairlanji. It's<br />
Bhaiyalal Bhotmange. That his wife Surekha,<br />
daughter Priyanka and two sons -- Sudhir and<br />
Roshan were lynched to death by the caste<br />
Hindu mob of the village and their bodies<br />
thrown away into a nearby canal<br />
Khairlanji -- undoubtedly is one<br />
of the worst cases of caste<br />
atrocity in the history of postindependent<br />
India. It provoked the<br />
most widespread and the longest<br />
agitation of Dalits in protest of a<br />
caste crime and also the worst kind<br />
of state repression.<br />
Entire world knew about<br />
Khairlanji. It's Bhaiyalal Bhotmange.<br />
That his wife Surekha, daughter<br />
Priyanka and two sons -- Sudhir and<br />
Roshan were lynched to death by the<br />
caste Hindu mob of the village and<br />
their bodies thrown away into a<br />
nearby canal. That the body of 17<br />
year-old Priyanka was found without<br />
any cloth on and with bruises all over<br />
and also her mother's in just a petticoat<br />
and a blouse. Everyone knew<br />
that although the immediate cause<br />
for the incident was Surekha and<br />
Priyanka standing as witness against<br />
the villagers in the case of assault on<br />
one Siddharth Gajbhiye – victims'<br />
relation and a police patil of nearby<br />
village, it was a culmination of a long<br />
standing grudge of the villagers<br />
against Bhotmanges' defiant resistance<br />
to their unjust overtures. Right<br />
since Bhotmanges came to Khairlanji<br />
to till their fertile land near an irrigation<br />
canal, some villagers had begun<br />
to harass them with an alibi of having<br />
a passage through their land.<br />
Even after giving the passage, they<br />
persisted with the harassment, which<br />
clearly showed that they wanted to<br />
drive them out and grab their land.<br />
There has been a history of caste<br />
abuses and threats of killing them,<br />
which the entire world has known<br />
through several fact-finding reports<br />
and hundreds of other reportage in<br />
public domain.<br />
None of this, however, could be<br />
known to the ad hoc sessions court in<br />
Bhandara, which pronounced that<br />
there was no caste dimension to the<br />
incident, nor was there any conspiracy<br />
or molestation of Bhotmange<br />
women. Whether it is a fault of the<br />
investigating agency to collect evidence<br />
or the public prosecutor to<br />
present it before the court or the<br />
judge to comprehend it is a mute<br />
question. The fact remains that the<br />
verdict of Khairlanji, the world<br />
famous caste atrocity, did not qualify<br />
to be a 'caste atrocity' to deserve<br />
application of the Scheduled Castes<br />
and Scheduled Tribes (Prevention of<br />
Atrocities) Act, 1989, or the Atrocity<br />
Act as it is commonly known. It only<br />
reconfirmed to the pattern of judgements<br />
that have effectively neutralised<br />
this only law on crimes<br />
against Dalits with some teeth.<br />
While there may not be much<br />
consequence of the Atrocity Act in<br />
cases of major crime that get much<br />
severer sentence as per the IPC than<br />
the maximum sentence of five years<br />
provided in it, its systematic neutralisation<br />
in the justice delivery system<br />
smacks of the prejudice of the latter<br />
which is the worrisome matter. If the<br />
justice delivery system itself is blind<br />
to the social reality of caste, the entire<br />
exercise of creating the constitutional<br />
structure and cobweb of laws for<br />
protecting Dalits becomes self<br />
defeating.<br />
No caste in Khairlanji?<br />
The FIR no: 56/2006, September 30,<br />
2006 registered with the police does<br />
mention that "because the complainant<br />
belonged to the Mahar<br />
caste, the accused with the intention<br />
of driving them out of the village,<br />
brutally beat the complainant's<br />
daughter Priyanka, killed her and in<br />
order to destroy the evidence threw<br />
her dead body into the canal." The<br />
FIR also mentions that the accused<br />
belonged to Kunabi and Kalar<br />
castes, i.e., non-scheduled castes and<br />
the complainant belonged to the<br />
scheduled caste. Thus, the crime<br />
prima facie qualified to be an atrocity<br />
under the Atrocity Act. The usual<br />
excuse that the FIR did not have<br />
indication of caste conflict being<br />
behind the crime (which is rightly<br />
done away with by the Supreme<br />
Court recently) certainly did not<br />
apply to Khairlanji. Indeed, the<br />
judgement did not indicate any such<br />
technical lacunae in the case for not<br />
applying the Atrocity Act. It did not<br />
see any ground for invoking its provisions<br />
and summarily concluded,<br />
"Khairlanji was a case of murder<br />
spurred by revenge for an earlier<br />
case of assault involving the police<br />
patil of a nearby village."<br />
It means that the public prosecutor<br />
did not establish the caste angle<br />
in the case. There was ample information<br />
even in public domain for the<br />
public prosecutor to strategise his<br />
www.combatlaw.org 39
DALIT RIGHTS<br />
interrogation in the court to bring<br />
forth the caste dimension underneath<br />
the crime. Obviously, he has<br />
not done it to the satisfaction of the<br />
judge. On perusing the record of testimonies<br />
of the witnesses , however,<br />
one finds a good amount of material<br />
to establish the caste dimension<br />
underneath.<br />
A witness Suresh Khandate had<br />
stated in his statement on June 30,<br />
2007, "I then saw Jagdish Mandlekar,<br />
Vishwanath Dhande, Shishupal<br />
Dhande, Shatrughna Dhande, Ramu<br />
Dhande, Sakru Binjewar, Gopal<br />
Bijewar and Prabhakar Mandlekar<br />
were standing in front of the house of<br />
Bhaiyalal Bhotmange. Shatrughan<br />
Dhande and Shishupoal Dhande<br />
were holding bicycle chains in their<br />
hands. Jagdish Mandlekar,<br />
Vishvanath Dhande, Ramu Dhande<br />
and Sakru Bijewar were holding<br />
sticks in their hands. They were giving<br />
abuses to Surekha Bhotmange<br />
and asking her to come outside her<br />
house. Jagdish Mandlekar and<br />
Vishvanath Dhande were telling<br />
Surekha Bhotmange that she made to<br />
complaint against them and told<br />
their names to police station and that<br />
these Mahar caste people should be<br />
ousted from the village."<br />
Another witness in the case,<br />
Mukesh Asaram Pusam, in his statement<br />
on May 4, 2007, had stated that<br />
one Jagdish Mandlekar was hurling<br />
abuses on Surekha Bhotmange asking<br />
her to come out of the house. (At<br />
this stage request was made by the<br />
special public prosecutor Mr Nikam<br />
to record evidence of this witness in<br />
question answer forms for some<br />
time). …<br />
Question: What abuses they were giving?<br />
Answer: They were telling, "Mahar<br />
Lok Majlele Aahet Tyana Gharabaher<br />
Kadha Aani Marun Taka." [Mahar<br />
community people have become<br />
arrogant and they be pulled out and<br />
be killed].<br />
Another witness, Dinesh Dhande<br />
in his statement on 16/11/06, in his<br />
examination by Adv. Ezaz Khan said,<br />
"While the incident was going on, 30<br />
to 40 persons surrounded the house<br />
of Bhaiyalal Bhotmange. Then some<br />
persons out of them, who were beating<br />
the Bhotmanges intermittently<br />
were shouting that if some one tells<br />
their names then he will also be beaten<br />
like them. Thereafter, I went away<br />
from there to my house as I was<br />
frightened. Bhaiyalal belongs to<br />
Mahar caste. At the time of incident<br />
those persons who were beating also<br />
shouting that 'Maharana Mara' (beat<br />
the Mahars). Those who were beating<br />
are now present in the Court. I<br />
know them as they are my co-villagers."<br />
In Exhibit no. 132, Bhaiyyalal<br />
Sudam Bhotmange said, "On that<br />
day at about 6–6:30 pm villagers<br />
attacked our house. They were<br />
shouting that, "Mahar Dhed [derogatory<br />
name for Mahars] people falsely<br />
implicated us in police case."<br />
All these testimonies are sufficient<br />
to attract the sections of the<br />
Atrocity Act. But the court completely<br />
disregarded them and freed all the<br />
accused from the charges of its sections<br />
3(1) (x), 3(1) (xi) and 3(2) (v).<br />
Apart from what has come on<br />
record, there was much that could be<br />
elicited in order to build the context<br />
for the case. Without setting the context<br />
for the crime how could possibly<br />
the real motive for it be discerned?<br />
The caste Hindus had begun harassing<br />
newly migrant family of<br />
Bhotmanges raising a pseudo dispute<br />
over the passage through their<br />
farmland. It turned out to be illfounded<br />
through revenue records<br />
but still Bhotmanges voluntarily<br />
offered them the passage in a bid to<br />
buy peace in village. However, not<br />
only did their harassment continue<br />
unabated but also increased with the<br />
entire gram panchayat colluding in<br />
it. The panchayat did not approve of<br />
their hutment being turned into a<br />
concrete structure and thereby<br />
deprived it of basic convenience like<br />
electricity connection. When they<br />
continued in village despite this all, it<br />
was construed as defiance. Much of it<br />
was attributed to the support they<br />
received from Siddharth Gajbhiye, a<br />
relative and a well to do Dalit from a<br />
nearby village. He was therefore<br />
attacked under the alibi of dispute<br />
over wages. And as a sequel to his<br />
case, the caste Hindus lynched the<br />
Bhotmange family to death. This intimate<br />
context of the case clearly<br />
brings out the underlying caste<br />
dimension to the entire saga of sufferings<br />
of the Bhotmanges. The<br />
Atrocity Act would demand of courts<br />
to examine the context of the case to<br />
discern the salience of caste dimension.<br />
Obviously, the Bhandara court<br />
did not do it disregarding many<br />
pointers and instead reached the<br />
40<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
easy inference that there was no caste<br />
angle to the case.<br />
It is not very difficult to disprove<br />
caste angle in any crime. It is quite<br />
commonplace to see the people<br />
belonging to the upper castes vehemently<br />
dismissing the existence of<br />
caste any and everywhere. Indeed, in<br />
the Khairlanji's case itself there were<br />
articles published in the national<br />
newspapers in the heat of dalit<br />
protests arguing that the incident<br />
was unduly given a caste angle. To<br />
prove their point, they could even<br />
uphold the abominable theory of<br />
illicit relationship, invented and<br />
propagated by the police to suppress<br />
the incident. It is not realised that<br />
these arguments are vacuous. Caste<br />
is not a material substance that its<br />
existence could be established objectively.<br />
It necessitates sensitivity to see<br />
that caste is an essential constituent<br />
of the Indian social ecology, a pervasive<br />
virus that cannot be isolated<br />
from practically anything. It exists<br />
everywhere; only its salience could<br />
differ. Even the hallowed judiciary is<br />
not expected to be exception to it. It is<br />
therefore that the Atrocity Act had a<br />
simple definition of atrocity for its<br />
prima facie application. For determining<br />
the salience of caste in process<br />
of delivering justice, it may<br />
expect the judges to possess due sensitivity.<br />
Unfortunately, it is still<br />
scarce. The justice delivery system<br />
also reflects the same prejudice<br />
against Dalits which is encountered<br />
in the civil society.<br />
How could it then be left to<br />
judges to determine whether a crime<br />
against Dalits has a caste motive or<br />
not for the prima facie application of<br />
It is not very<br />
difficult to disprove<br />
caste angle in any<br />
crime. It is quite<br />
commonplace to<br />
see the people<br />
belonging to the<br />
upper castes<br />
vehemently<br />
dismissing the<br />
existence of<br />
caste any and<br />
everywhere<br />
the PoA Act? How can one prove that<br />
a crime is caused because of the caste<br />
of the victim? In ordinary circumstances,<br />
the ostensible cause of crime<br />
would always be found in some dispute<br />
over property (land) or some<br />
immediate provocation, as per victim<br />
precipitation theory. Even behind an<br />
obvious case of caste crime such as<br />
killing a Dalit for entering temple<br />
one may see any other momentary<br />
cause other than caste, if one wants<br />
to. The crimes against Dalits are<br />
catalysed by social prejudice and<br />
their vulnerability. While social prejudice<br />
could be dismissed as nonmaterial<br />
or ideological, vulnerability<br />
can be argued to be a non-caste factor,<br />
if one is determined to discount<br />
caste. It need not be appreciated that<br />
social prejudice to a large measure<br />
begets vulnerability and the two cannot<br />
be separated. To search for an<br />
evidence of caste motive behind the<br />
crime against Dalits is therefore<br />
objectively impossible. It is either relegated<br />
to a judge who is not supposed<br />
to be immune from social prejudice<br />
or to the perpetrator of crime<br />
himself to admit it. Both conditions<br />
are fallacious.<br />
Total lack of political will<br />
Ever since the SC/ST Act has been<br />
enforced, a section of the political<br />
leadership has launched an open vilification<br />
campaign against its use,<br />
reinforcing the general prejudice<br />
against Dalits in justice delivery system.<br />
As a result, nowhere in the<br />
country the Act has been vigorously<br />
implemented. It has, if at all, little<br />
impact on the level of atrocities<br />
against Dalits. In Maharashtra, the<br />
Shiv Sena, which represents the<br />
Brahminical ethos par excellence,<br />
had made repealing the Act as its<br />
election issue in 1995. True to its<br />
promise, after coming to power, it<br />
withdrew over 1,100 cases registered<br />
under the Act alleging that the cases<br />
were false and were registered out of<br />
personal bias. The state government<br />
also declared that it would ask the<br />
central government to amend the Act<br />
to limit its "abuse". The withdrawal<br />
of cases effectively sent the message<br />
to the police not to register the cases<br />
and ensured that it would not be<br />
taken seriously. When a government<br />
in power takes such a position, its<br />
constitutional responsibility is<br />
severely compromised. This also<br />
ensured that no one would take the<br />
law seriously.<br />
www.combatlaw.org 41
DALIT RIGHTS<br />
The chief of Samajwadi Party,<br />
Mulayam Singh Yadav, openly and<br />
unabashedly spoke against the use of<br />
the SC/ST Act and accused the then<br />
Dalit chief minister of Uttar Pradesh<br />
(Mayawati) of casteism in enforcing<br />
the Act. He has been consistently<br />
arguing against its use by the police<br />
machinery. In 1997, the BJP also<br />
called for its repeal on the ground<br />
that the ruling party (BSP) has been<br />
instigating SCs to file cases against<br />
political opponents in the state.<br />
Later, with changed political equations,<br />
Mayawati herself had issued<br />
instructions not to register cases<br />
under the atrocity Act unless<br />
approved by the district magistrates.<br />
The CPM-led government in West<br />
Bengal was not registering cases<br />
under the Act because of their conviction<br />
that violence against SCs is<br />
not guided by caste consideration.<br />
Very recently, one Rajasthan cabinet<br />
minister termed the registration of<br />
cases under the Act as a 'headache'<br />
for the police and sought to remedify<br />
the problem. These are only few<br />
instances where the expression of<br />
hostility has come out in the open.<br />
Many more political leaders may be<br />
covertly frustrating the use of its provisions<br />
in controlling the incidence of<br />
atrocities. This provides evidence, if<br />
required, that the political will to<br />
enforce the Act has been lacking. If<br />
the Act really gets implemented<br />
effectively, it would not be surprising<br />
to see more hostile statements coming<br />
out against the use of the Act<br />
from the political class.<br />
The lack of political will is not<br />
confined to some utterances of certain<br />
politicians; it is evident in the<br />
gross laxity in compliance with the<br />
Rules framed for implementation of<br />
the atrocity Act across the states. As<br />
Khairlanji revealed, Maharashtra did<br />
not have much to claim. Bhandara, as<br />
the atrocity prone district should<br />
have had a special court, a panel of<br />
senior advocates to draw a special<br />
public prosecutor from, district committee,<br />
and a system to review performance<br />
of special public prosecutors.<br />
Even after the unprecedented<br />
public uproar, the government made<br />
do with an ad hoc session court and<br />
imported a 'celebrity' public prosecutor<br />
from Mumbai ignoring the nominee<br />
of Khairlanji action committee.<br />
The lack of political<br />
will is not confined<br />
to some utterances<br />
of certain<br />
politicians; it is<br />
evident in the gross<br />
laxity in compliance<br />
with the rules<br />
framed for<br />
implementation of<br />
the Atrocity Act<br />
across the states<br />
A tamed toothless tiger<br />
This being the state of political will<br />
behind the Atrocity Act, the state<br />
administration would naturally be<br />
lax in dealing with atrocity cases. The<br />
Ahmedabad-based Council for Social<br />
Justice (CSJ) had conducted a<br />
detailed study of 400 judgements<br />
delivered by the special courts set up<br />
in Gujarat in 16 districts since April 1,<br />
1995. It revealed a shocking pattern<br />
of reasons for the collapse of cases<br />
filed under the PoA Act within<br />
Gujarat -- utterly negligent police<br />
investigation at both the higher and<br />
lower levels, coupled with a distinctly<br />
hostile role played by the public<br />
prosecutors. In over 95 percent of the<br />
cases, acquittals had resulted due to<br />
technical lapses by the investigation<br />
and prosecution, and in the remaining<br />
five percent, court directives<br />
were flouted by the government.<br />
The study also refutes the perception<br />
that the inefficacy of this Act is due to<br />
false complaints being lodged or<br />
compromises between the parties. It<br />
says it is the complicit state that has<br />
rendered the Act toothless.<br />
All these lapses of the state functionaries<br />
are as a matter of fact punishable<br />
under the 1989 Act but no<br />
action is ever taken. Section 4 of the<br />
Act clearly says, "Whoever, being a<br />
public servant but not being a member<br />
of a scheduled caste or a scheduled<br />
tribe willfully neglects duties<br />
required to be performed by him<br />
under this Act, shall be punished<br />
with imprisonment for a term which<br />
shall not be less than six months but<br />
which may extend to one year." In 95<br />
percent of the judgements studied by<br />
the CSJ, courts have passed strictures<br />
against errant police officials invoking<br />
provisions of section 4 of the<br />
Atrocities Act, but the government of<br />
Gujarat, instead of taking action<br />
against the officers, has honoured<br />
them with promotions.<br />
No wonder the conviction rate for<br />
the cases under the Atrocity Act is<br />
alarmingly low. According to an official<br />
report -- crime in Maharashtra,<br />
2007 -- by the state criminal investigation<br />
department (CID) this year,<br />
the conviction rate under the<br />
Atrocities Act for 2007 was a minuscule<br />
1.9 and for offences against<br />
scheduled castes it was 2.2 percent.<br />
In 2007, the CID report said the rate<br />
of crime against scheduled castes<br />
42<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
was the highest in Bhandara district.<br />
The Atrocity Act, appearing as a<br />
roaring tiger on paper is reduced in<br />
practice to be a toothless tiger.<br />
Conclusion<br />
The Khairlanji verdict was hailed as<br />
'historical' by newspapers and certain<br />
Dalit politicians because it was<br />
delivered within two years from the<br />
occurrence of the incident, relatively<br />
a short period in the Indian judicial<br />
history, and awarding severe sentences<br />
(death to six and life imprisonment<br />
to two) as the ghastly crime<br />
deserved. While many Dalits were<br />
awarded capital punishment before<br />
but it was for the first time that it was<br />
given to their killers. In the jubilation,<br />
it was forgotten that for this<br />
worst orgy of violence by the entire<br />
caste Hindu village, only 11 out of 47<br />
original accused were tried and only<br />
eight out of them finally convicted.<br />
More importantly, they were discharged<br />
from the provisions of the<br />
Atrocity Act as well as section 354<br />
(assault or criminal force with intent<br />
to outrage the modesty of a woman)<br />
or section 375 (that deals with rape)<br />
of the Indian Penal Code. While in<br />
the heat of public uproar, the ad hoc<br />
sessions court awarded severe punishments,<br />
as the case goes through<br />
appeals in higher courts; it is anybody's<br />
guess whether the convicts<br />
would be eventually punished for<br />
their crime.<br />
The bigger problem is that the<br />
Khairlanji verdict calls into question<br />
the enforceability of the Atrocity Act.<br />
The sessions court has rejected its<br />
application to the Khairlanji case as it<br />
did not find any caste motive in the<br />
The Khairlanji verdict<br />
was hailed as 'historical'<br />
by newspapers and<br />
certain Dalit politicians<br />
because it was delivered<br />
within two years from<br />
the occurrence of the<br />
incident, relatively a<br />
short period in the Indian<br />
judicial history, and<br />
awarding severe<br />
sentences (death to six<br />
and life imprisonment to<br />
two) as the ghastly crime<br />
deserved<br />
crime. There have been similar cases<br />
in the past but they went unnoticed.<br />
While the judges award the sentence<br />
under IPC, they refuse to see the<br />
caste motive in the crime so as to<br />
attract the Atrocity Act. For instance,<br />
in a recent judgement on the infamous<br />
case of a gang rape of a Dalit<br />
student by her teachers in a primary<br />
teacher training college in Patan,<br />
Gujarat, the fast track court awarded<br />
life imprisonment to all the six<br />
accused but rejected the application<br />
of the Atrocity Act as he did not see<br />
caste motive behind the crime. While<br />
in major crimes, such as rapes and<br />
murders, by virtue of sentences<br />
awarded under the IPC exceeding<br />
the maximum sentence provided<br />
under the Atrocity Act, it may appear<br />
inconsequential, but truly speaking it<br />
leaves out many of its other provisions<br />
which are not available under<br />
the IPC. For instance, the Act provides<br />
for punishment to policemen<br />
and enforcement authorities who fail<br />
to protect Dalits from atrocities. It<br />
empowers special courts to expel<br />
'potential offenders' from scheduled<br />
areas and tribal areas, attach the<br />
property of an offender, and prohibits<br />
the grant of anticipatory bail to<br />
the potential accused. It also provides<br />
for the payment of compensation<br />
to victims or their legal heirs as<br />
well as imposition of collective fine.<br />
These unique provisions are not<br />
included in any other Acts. The<br />
Atrocity Act has simple definition of<br />
atrocity, being a crime committed by<br />
a non-SC/ST person on a SC/ST person.<br />
If this definition is overlain with<br />
the criterion of caste motive, as being<br />
practiced by the judges, the Act<br />
becomes unenforceable and hence as<br />
good as dead.<br />
The Atrocity Act is premised on<br />
the fact that the crimes against Dalits<br />
by non-Dalit have special socio-cultural<br />
context which is absent in other<br />
crimes. Caste being a pervasive feature<br />
of the Indian society, the judges<br />
cannot be assumed to be islands<br />
devoid of its influence. They are only<br />
expected to professionally deal with<br />
the mechanics of laid down law and<br />
not to possess extraordinary sensitivity<br />
to pronounce verdict on the basic<br />
social character of which they themselves<br />
are a part. When they pronounce<br />
judgement about the existence<br />
or otherwise of a caste motive<br />
in a crime, they essentially assume<br />
themselves to be sans societal influence.<br />
In doing so, they not only contradict<br />
the basic premise of the Act<br />
but by bringing their own prejudices<br />
into play incapacitate its prowess of<br />
doing justice to Dalits. There is an<br />
urgent need to remove this anomalous<br />
content of the Act to restore its<br />
enforceability. The government<br />
should realise that it has grossly<br />
failed to enforce the Act because it<br />
has shied away from punishing the<br />
people responsible for creating the<br />
structure for its implementation as<br />
envisaged by the Act.<br />
–The writer is a human rights<br />
activist and author of<br />
'Ambedkar on Muslims'<br />
www.combatlaw.org 43
DALIT RIGHTS<br />
Right not to be treated as<br />
UNTOUCHABLE<br />
More than sixty years<br />
after Independence,<br />
untouchability is alive<br />
and thriving in India's<br />
hinterlands. Pockets<br />
of social change are<br />
mere drops in an<br />
ocean of casteism and<br />
prejudice. Justice<br />
(Retd) Hosbet Suresh<br />
analyses the SC/ST<br />
Atrocities Act in<br />
comparision with<br />
other international<br />
laws, only to find out<br />
that untouchability is<br />
equal to apartheid and<br />
there is an urgent<br />
need to redraft Article<br />
17 in the form of a<br />
right - 'right not to be<br />
treated as an<br />
untouchable'<br />
While the Indian Constitution<br />
guarantees certain fundamental<br />
freedoms, under<br />
Articles 19(1), 14, 21 with constitutional<br />
remedies under Articles 32<br />
and 226, can it be deduced that there<br />
is a similar guarantee when it comes<br />
to Article 17 relating to untouchability?<br />
The Article only says, "untouchability<br />
is abolished and its practice in<br />
any form is forbidden. The enforcement<br />
of any disability arising out of<br />
'untouchability' shall be an offence<br />
punishable in accordance with law."<br />
While the Constitution states that<br />
it is "abolished", the reality and factual<br />
situation is that untouchability is<br />
prevalent all over the country even<br />
after nearly six decades of the<br />
Constitution. While it is not necessary<br />
to enumerate those practices of<br />
untouchability, it must essentially be<br />
considered as a caste-biased discrimination.<br />
As such it should fall within<br />
the ambit of Article 14. However,<br />
under Article 14 there is no positive<br />
programme to initiate democratic<br />
change under rule of law to eliminate<br />
44<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
the inhuman practices of untouchability.<br />
Articles 15 and 16 operate in certain<br />
areas, as mentioned therein, prohibiting<br />
discrimination on grounds of<br />
religion, race, caste, sex or place of<br />
birth and providing equality of opportunities<br />
in certain areas of public<br />
employment and education. These<br />
provisions by themselves are not sufficient<br />
enough to bring about equality<br />
of status in every walk of social life.<br />
Justice K Ramaswamy observes:<br />
"There can be no dignity of person<br />
without equality of status and opportunity.<br />
Denial of equal opportunities<br />
in any walk of social life is denial of<br />
equal status and amounts to prevent<br />
equal participation in social intercourse<br />
and deprivation of equal access<br />
to social means…" (State of Karnataka<br />
vs Appa Balu Ingle. AIR 1993 SC 1126)<br />
Untouchability is nothing but<br />
severe social discrimination, and has<br />
resulted in deprivation of all economic,<br />
social and cultural rights of<br />
all the victims of untouchability<br />
namely the Dalits. Therefore, the<br />
objective of Article 17 being to guarantee<br />
non-discrimination by eliminating<br />
untouchability ought to have<br />
provided for measures in relation to<br />
economic, social and cultural rights,<br />
with a view to attain equality of status<br />
and dignity for every Dalit at par<br />
with every other citizen.<br />
Unfortunately, Article 17 only provides<br />
for treating untouchability as<br />
an offence, and leaves the rest with<br />
the police. Perhaps the Constitution<br />
makers might have felt that treating<br />
untouchability as a crime would be a<br />
sufficient deterrent to put an end to<br />
this social evil.<br />
The government initially enacted<br />
the Untouchability (offences) Act,<br />
1955, later amended and renamed in<br />
1976 as the Protection of Civil Rights<br />
Act. It provided for punishment to<br />
persons enforcing religious disabilities<br />
(prevention of entry into temples,<br />
sacred rivers and water bodies,<br />
etc.) and enforcing social disabilities<br />
(denying access to any shop, hotel,<br />
public hospital, etc.). The Act authorises<br />
the government to impose collective<br />
fine on all inhabitants of an<br />
area where the offence is committed.<br />
Similarly in the case of commercial<br />
establishments, every person incharge<br />
of its affairs could be prosecuted<br />
even if they have not personally<br />
committed the offence.<br />
However, PCRA was found to be<br />
not sufficiently effective. Hence, the<br />
government enacted the scheduled<br />
caste and scheduled tribes (prevention<br />
of atrocities) Act, 1989. It enumerated<br />
about 15 offences of atrocities<br />
and provided for punishment of<br />
those offences. Further it provided<br />
for punishment for abetment, fabrication<br />
of false evidence, etc. It also<br />
provided for punishment for neglect<br />
of duties and even the police could<br />
be prosecuted for not registering a<br />
complaint and for not carrying out<br />
proper investigation. Under the<br />
Rules, the victims are entitled to get<br />
compensation for different stages as<br />
the case proceeds.<br />
Another piece of legislation is the<br />
Employment of Manual Scavengers<br />
and Constructions of Dry Latrines<br />
(Prohibition) Act, 1993, which provides<br />
for the prohibition of employment<br />
of manual scavengers as well<br />
as construction or continuance of dry<br />
latrines and for the regulation of construction<br />
and maintenance of water<br />
seal latrines and matters connected<br />
therewith.<br />
However, with all these laws in<br />
place for decades what have we<br />
achieved so far? The practice of<br />
untouchability continues. We still<br />
have manual scavengers and workers<br />
being required to enter the manholes<br />
and sewers to clean them manually<br />
without the safety equipment.<br />
These persons are engaged by the<br />
State -- the local authorities -- without<br />
realising that such acts are violative<br />
of the Constitution itself.<br />
One of the main reasons for the<br />
ineffective implementation of the<br />
SC/ST Act is that there is an inordinate<br />
delay in the trial of criminal<br />
cases in this country. Moreover, the<br />
investigations are generally in the<br />
hands of the police, majority of them<br />
being from the upper caste. The<br />
delay ultimately defeats justice and<br />
the evil persists. This is exactly what<br />
has happened with regard to the<br />
offences under the Atrocities Act.<br />
Untouchability cannot be eliminated<br />
by the police alone. It cannot<br />
be removed by just making it an<br />
offence without taking positive steps<br />
to end all social discrimination and<br />
promote equality. It is time to redraft<br />
Article 17 in the form of a right --<br />
Right not to be treated as an<br />
"Untouchable". The State will then<br />
Untouchability is<br />
nothing but severe<br />
social discrimination,<br />
and has resulted in<br />
deprivation of all<br />
economic, social and<br />
cultural rights of<br />
all the victims of<br />
untouchability, namely<br />
Dalits. Therefore, the<br />
objective of Article 17<br />
being to guarantee<br />
non-discrimination<br />
by eliminating<br />
untouchability ought<br />
to have provided for<br />
measures in relation to<br />
economic, social and<br />
cultural rights, with a<br />
view to attain equality<br />
of status and dignity for<br />
every Dalit at par with<br />
every other citizen.<br />
Unfortunately, Article<br />
17 only provides for<br />
treating untouchability<br />
as an offence, and<br />
leaves the rest with the<br />
police. Perhaps the<br />
Constitution makers<br />
might have felt that<br />
treating untouchability<br />
as a crime would be a<br />
sufficient deterrent to<br />
put an end to this<br />
social evil<br />
www.combatlaw.org 45
DALIT RIGHTS<br />
have the obligation to prevent<br />
violation of this right, and also to fulfil<br />
its duty.<br />
In this connection we may refer to<br />
the South African constitution. They<br />
had the worst form of apartheid and<br />
faced all kinds of discriminatory<br />
practices that white minority heaped<br />
upon the blacks, Asians and other<br />
"coloured" people. However, South<br />
Africa, after its reconstitution into a<br />
republic in 1996, enacted two great<br />
pieces of legislation that any country<br />
could. The first one is the Promotion<br />
of Equality and Prevention of Unfair<br />
Discrimination Act, 2000. This was<br />
enacted to give effect to section 9 of<br />
the constitution of the South African<br />
Republic. It provides "for the enactment<br />
of national legislation to prevent<br />
or prohibit unfair discrimination<br />
and to promote the achievement<br />
of equality". The Act is said to be<br />
advancement over the Civil Rights<br />
Act, 1964, of the USA and the SC/ST<br />
Prevention of Atrocities Act, 1989, of<br />
India. The South African Act is significant<br />
since it selects three very crucial<br />
and socially burning issues<br />
namely, discrimination, harassment<br />
and hate speech.<br />
The objective of this law states:<br />
"The consolidation of democracy in<br />
our country requires the eradication<br />
of social and economic inequalities,<br />
especially those that are systemic in<br />
nature, which were generated in our<br />
history by colonialism, apartheid and<br />
patriarchy, and which brought pain<br />
and suffering to the great majority of<br />
our people.<br />
Although significant progress has<br />
been made in restructuring and<br />
transforming our society and its<br />
institutions, systemic inequalities<br />
and unfair discrimination remain<br />
deeply embedded in social structures,<br />
practices and attitudes, undermining<br />
the aspirations of our constitutional<br />
democracy."<br />
It takes into account international<br />
conventions, particularly Convention<br />
on the Elimination of All Forms of<br />
Discrimination Against Women, and<br />
the Convention on the Elimination of<br />
All Forms of Racial Discrimination. It<br />
emphasises the need for the advancement<br />
by special legal and other measures<br />
of historically disadvantaged<br />
individuals, communities and social<br />
groups who were dispossessed of<br />
their land and resources, deprived of<br />
USA and South Africa<br />
had passed through<br />
histories of inequality,<br />
discrimination, racism,<br />
apartheid and many violent<br />
and peaceful protests.<br />
In the US, the African-<br />
Americans who were taken<br />
as slaves in the 16th and<br />
17th centuries, and the<br />
Hispanics -- people from<br />
Latin American countries --<br />
also taken as slaves, have<br />
been able to overcome<br />
discrimination and<br />
inequality to a great extent.<br />
Today these discriminated<br />
people are on an<br />
equal footing<br />
their human dignity and who continued<br />
to endure the consequences.<br />
The Act provides for prevention<br />
and general prohibition of unfair discrimination,<br />
prohibition of unfair<br />
discrimination on grounds of race<br />
and gender, prohibition of hate<br />
speech and harassment and of dissemination<br />
and publication of unfair<br />
discriminatory information. The Act<br />
provides for equality courts and for<br />
promotion of equality it ordered general<br />
responsibility to promote equality<br />
as a duty of the State.<br />
The second Act in the South<br />
African constitution is the<br />
Employment Equity Act, 1998. This<br />
was enacted to mainly eliminate disparities<br />
in employment, occupation<br />
and income. The Act was brought in<br />
order to promote the constitutional<br />
right of equality and the exercise of<br />
true democracy and to give effect to<br />
the obligations of the republic as a<br />
member of the International Labour<br />
Organisation (ILO). The Act, apart<br />
from prohibiting unfair discrimination,<br />
has an affirmative action programme.<br />
One of the important provisions<br />
is that anybody who employs<br />
50 or more employees, whether in<br />
government, public or private sector,<br />
or anyone who under a contract with<br />
the State employs 50 or more persons,<br />
will have to employ certain<br />
number of black people (all coloured<br />
people), women and persons with<br />
disabilities. Like in the US, the<br />
Act provides for a committee for<br />
employment equity, similar to<br />
Equal Employment Opportunity<br />
Commission.<br />
Both, USA and South Africa had<br />
passed through histories of inequality,<br />
discrimination, racism, apartheid<br />
and many violent and peaceful<br />
protests. In the US, the African-<br />
Americans who were taken as slaves<br />
in the 16th and 17th centuries, and<br />
the Hispanics -- people from Latin<br />
American countries -- also taken as<br />
slaves, have been able to overcome<br />
discrimination and inequality to a<br />
great extent. Today these discriminated<br />
people are on an equal footing,<br />
both, in the private sector and in<br />
every sphere of public life. Hence,<br />
South Africa is very much on the way<br />
to evolve into a vibrant democracy.<br />
The Human Rights Committee<br />
(under Article 40 of International<br />
Covenant on Civil and Political<br />
Rights) in its report on India (August<br />
4, 1997) had, inter-alia, observed:<br />
"The Committee notes with concern<br />
that, despite measures taken by the<br />
government, members of scheduled<br />
castes and scheduled tribes … continue<br />
to endure severe social discrimination<br />
and to suffer disproportionately<br />
from many violations of their<br />
rights under the covenant, inter-alia,<br />
inter-caste violence, bonded labour<br />
and discrimination of all kinds. It<br />
regrets that the de facto perpetuation<br />
of the caste system entrenches social<br />
differences and contributes to these<br />
violations. While the committee<br />
notes the efforts made by the State to<br />
eradicate discrimination, it recommends<br />
that further measures be<br />
adopted, including education programmes…"<br />
It is now two decades since the<br />
report surfaced. The crux of the problem<br />
is that while we abolished<br />
untouchability we have still retained<br />
the caste system. As long as the caste<br />
system continues to dominate our<br />
social and cultural life, untouchability<br />
will not disappear. It is time we<br />
say the caste system is abolished.<br />
–Justice Hosbet Suresh<br />
is a retired judge of the<br />
Bombay High Court<br />
46<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
COMBAT LAW<br />
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www.combatlaw.org 47
DALIT RIGHTS<br />
A neglected<br />
component<br />
The special component<br />
plan (SCP) was designed to<br />
economically liberate,<br />
educationally equalise and<br />
give social dignity to<br />
Scheduled Castes and their<br />
inclusion into the<br />
mainstream society.<br />
However, fiddling with the<br />
funds meant for the<br />
economic empowerment of<br />
the Dalits in the<br />
bureaucratic corridors and<br />
weak implementation of<br />
the SC/ST (PoA) Act has<br />
completely defeated the<br />
purpose of the SCP. In the<br />
last five years, the system<br />
has denied SCs a whopping<br />
sum of Rs 76,690 crore that<br />
should have been<br />
earmarked for them under<br />
a special scheme.<br />
Advocating qualitative<br />
diversion of funds,<br />
N Paul Divakar and<br />
Abhay Kumar opine that<br />
unless we create an<br />
environment where the<br />
downtrodden advance from<br />
their traditional jobs, the<br />
motto will remain<br />
unfulfilled<br />
“It is shocking that the conviction<br />
rate for cases of atrocities against<br />
SC/STs is less than 30 percent,<br />
against the average of 42 percent for<br />
all cognisable offences under the<br />
IPC. The state governments, therefore,<br />
need to give more attention to<br />
this important issue. Meetings of<br />
state and district vigilance and<br />
monitoring committees should be<br />
held more regularly. Court cases<br />
should be pursued diligently and on<br />
priority basis. I have written to the<br />
chief ministers of all the states to<br />
enforce vigorously the provisions of<br />
the Scheduled Castes and Scheduled<br />
Tribes (Prevention of Atrocities)<br />
Act.”<br />
–Prime Minister Manmohan<br />
Singh addressing a conference of<br />
state ministers of welfare and<br />
social justice (September 7, 2009) 1<br />
The SC/ST Prevention of<br />
Atrocities (PoA) Act has been<br />
promulgated in 1989 and the<br />
rules in 1995 with the objective of<br />
preventing the atrocities against<br />
scheduled castes, for speedy and<br />
effective trial, and relief and rehabilitation.<br />
The special component plan<br />
(SCP) was designed to ensure the<br />
economic development and inclusion<br />
of the SC communities into the<br />
mainstream society on all fronts. The<br />
performance of the UPA government,<br />
which is now in its second successive<br />
term, in the implementation<br />
of these two provisions is indeed disappointing.<br />
Special provisions for SCs<br />
Scheduled castes have been among<br />
the most neglected, marginalised and<br />
exploited lot. The scourge of<br />
untouchability is a blot on the Indian<br />
48<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
civilisation. Despite the constitutional<br />
declaration of its abolition,<br />
untouchability persists in many subtle<br />
and not so subtle forms. The deep<br />
concern of the makers of the<br />
Constitution for the uplift of the<br />
scheduled castes and other<br />
marginalised communities of the<br />
country is reflected in the elaborate<br />
constitutional mechanism set-up for<br />
their welfare. Article 17 abolishes<br />
untouchability whereas Article 46<br />
requires the State “to promote with<br />
special care the educational and economic<br />
interests of the weaker sections<br />
of the people, and, in particular,<br />
of the scheduled castes and the<br />
scheduled tribes, and to protect them<br />
from social injustice and all forms of<br />
exploitation”. Article 335 says that<br />
the claims of the members of the<br />
scheduled castes and the scheduled<br />
tribes shall be taken into consideration,<br />
consistently with the maintenance<br />
of efficiency of administration,<br />
in the making of appointments to<br />
services and posts in connection with<br />
the affairs of the union or of a state<br />
meanwhile, Article 15(4) refers to the<br />
special provisions for their advancement.<br />
Article 16 (4A) speaks of<br />
“reservation in matters of promotion<br />
to any class or classes of posts in the<br />
services under the State in favour of<br />
SCs/STs, which are not adequately<br />
represented in the services under the<br />
State”. Article 338 provides for a<br />
national commission for the scheduled<br />
castes and scheduled tribes with<br />
duties to investigate and monitor all<br />
matters relating to safeguards provided<br />
for them, to inquire into specific<br />
complaints and to participate and<br />
advise on the planning process of<br />
their socio-economic development<br />
etc. Article 330 and Article 332 of the<br />
Constitution, respectively, provide<br />
for reservation of seats in favour of<br />
the SCs and STs in the Lok Sabha and<br />
in the legislative assemblies of the<br />
states.<br />
The above mentioned constitutional<br />
measures are made operational<br />
through some Acts with penal<br />
provisions like the PCR (Protection<br />
of Civil Rights) Act, 1955 followed<br />
much later by the SC/ST (Prevention<br />
of Atrocities) Act, 1989. To further<br />
ensure that the financial resources<br />
needed to implement the penal and<br />
developmental constitutional provisions<br />
for the protection and welfare<br />
of the SC/STs, two financial policies<br />
— SCP (special component plan) and<br />
TSP (tribal sub-plan) were formulated<br />
in 1979 to factor in to the national<br />
planning commission and the state<br />
planning units. Statutory bodies like<br />
the national scheduled castes commission<br />
and national scheduled<br />
tribes commission have been set up<br />
to oversee the implementation of<br />
such constitutional policies. These<br />
provisions are together meant to<br />
address four critical areas of castebased<br />
discrimination experienced by<br />
Scheduled castes<br />
have been among<br />
the most neglected,<br />
marginalised and<br />
exploited lot. The<br />
scourge of<br />
untouchability is<br />
a blot on the Indian<br />
civilisation. Despite<br />
the constitutional<br />
declaration of its<br />
abolition, untouchability<br />
persists in many<br />
subtle and not so<br />
subtle forms<br />
Dalit communities namely: protection<br />
against untouchability and violence;<br />
promote participation in<br />
development and governance;<br />
ensure adequate resources; and monitoring,<br />
oversight and expansion of<br />
rights for the dynamic uplift of the<br />
marginalised communities.<br />
Gaps in PoA Act 2<br />
The implementation of this protective<br />
and preventive Act falls short in<br />
many ways both at the union and<br />
state levels.<br />
(i) Non-registration of the cases under<br />
the Act and deterred from making complaints<br />
of atrocities: Under reporting of<br />
atrocities is a very common phenomenon.<br />
The national human rights<br />
commission in its report on ‘atrocities<br />
against scheduled castes, 2002’<br />
observes that “even in respect of<br />
heinous crimes the police machinery<br />
in many states has been deliberately<br />
avoiding SCs and STs (Prevention of<br />
Atrocities) Act, 1989”. The report further<br />
states “police resort to various<br />
machinations to discourage scheduled<br />
castes/scheduled tribes from<br />
registering a case, to dilute the seriousness<br />
of the violence, to shield the<br />
accused persons from arrest and<br />
prosecution and, in some cases, the<br />
police themselves inflict violence”.<br />
(ii) Not filing cases under appropriate<br />
sections of the Act: It was deduced<br />
from the reports of various human<br />
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DALIT RIGHTS<br />
rights organisations, NHRC and<br />
other commissions of various state<br />
governments that the first information<br />
reports (FIRs) were registered<br />
without reference to proper sections<br />
of the PoA Act. As per national crime<br />
records bureau (NCRB) reports, 67<br />
percent of cases during 1992-2000<br />
and 64.9 percent during 2001-2007<br />
were not registered under SC/ST<br />
(PoA) Act. Out of registered cases, in<br />
84.4 percent cases wrong provisions<br />
were applied to conceal heinous,<br />
inhuman and violent nature of the<br />
atrocities inflicted upon the Dalits.<br />
(iii) Delay in filing of chargesheet:<br />
Chargesheets in atrocity-related<br />
cases are invariably filed late. Besides<br />
non-registration of cases despite<br />
merit, there were delays in investigation,<br />
collusion with offenders and<br />
manipulation of witnesses and evidence,<br />
all of which contributed to<br />
reduce the effectiveness of legislation<br />
on atrocities. The state police department<br />
of Andhra Pradesh, in response<br />
to a query raised by the chief justice<br />
of the AP High Court on the PIL filed<br />
by Sakshi human rights watch,<br />
admitted that 14,452 cases were<br />
delayed.<br />
(iv) Accused not arrested or invariably<br />
released on bail: Various reports have<br />
shown that either the accused are<br />
invariably not arrested and allowed<br />
to roam free or released on bail even<br />
in cases of serious crimes. Based on<br />
several representations made to<br />
Justice K Punnayaya commission<br />
constituted by the Andhra Pradesh<br />
government, the commission stated<br />
that the sub-inspectors or circleinspectors<br />
did not arrest the<br />
assailants who committed the atrocities<br />
even though FIRs were recorded<br />
and cases were registered. The judicial<br />
trends observed by an NHRC<br />
study reveal that the prosecutions<br />
are quashed on the ground that the<br />
offence was not committed on<br />
account of the victim being a SC or a<br />
ST but on other grounds such as lust<br />
for sex, illicit intimacy in cases of<br />
rape, political rivalry, enmity in case<br />
of murder, grievous hurt, etc.<br />
Secondly there is a tendency to<br />
accept evidence only from nonscheduled<br />
castes/non-scheduled<br />
tribes people, and thirdly personal<br />
beliefs and prejudices determine<br />
appreciation of evidence, determination<br />
of guilt and award of judgement.<br />
These beliefs have the unmistakable<br />
print of social biases, both caste and<br />
gender.<br />
(v) Filing false and counter cases against<br />
Dalit victims: Police deters the victims<br />
by colluding with the accused in filing<br />
false counter cases. The counter<br />
reports are indiscriminately registered<br />
against the SCs and STs. Based<br />
on the counter reports police arrest<br />
the Dalits and in most cases they do<br />
not even entertain the cases by the<br />
SCs and STs.<br />
(vi) Compensation prescribed under the<br />
Act is invariably not paid: The NHRC<br />
report, 2002 observes “the breach of<br />
duties by civil administration is committed<br />
in the following manner:<br />
(i) Not conducting an inquiry, thereby<br />
evading duty to give relief and<br />
compensation<br />
(ii) Making false promises to give<br />
compensation and delay in distributing<br />
cash as monetary relief<br />
(iii) Not providing allowances, such<br />
as travel allowance relating to trial<br />
and investigation for witnesses and<br />
victims, maintenance expenses and<br />
daily allowance, medical expenses,<br />
etc.<br />
The administration ignores social<br />
boycott of scheduled castes which<br />
leads to denial of employment and<br />
access to basic necessities like drawing<br />
water from the common village<br />
well or pond, ration shop, denial to<br />
buy or sell any goods in the village,<br />
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DALIT RIGHTS<br />
etc., to pressurise the Dalits into submission<br />
and cause intense mental<br />
agony to them though no physical<br />
violence may take place in the<br />
process.<br />
(vii) No access to legal aid: A report of<br />
the national commission for scheduled<br />
castes and scheduled tribes has<br />
found that special legal assistance as<br />
envisaged by the SC/ST Act was not<br />
extended to SCs and STs even in one<br />
of the thousands of cases looked into<br />
by the commission. On the other<br />
hand, the accused have recourse to<br />
good lawyers. A centrally sponsored<br />
financial assistance scheme was introduced,<br />
initially for effective implementation<br />
of the PCR Act, 1955 in the<br />
year 1974-75. The scheme was later<br />
(1990-91) extended to cover scheduled<br />
castes and scheduled tribes<br />
(Prevention of Atrocities) Act, 1989 as<br />
well. But the NHRC report states that:<br />
(a) The funds released to states bear<br />
no correspondence to the volume of<br />
atrocity cases committed or registered<br />
therein.<br />
(b) The withdrawal of assistance by<br />
some states is extremely low despite<br />
the sizeable percentage of SC population<br />
and also high incidence of cases<br />
of violence against them.<br />
(c) There is an uneven distribution of<br />
monetary assistance across years in<br />
various states. Some states are<br />
drawing disproportionately large<br />
amounts in certain years.<br />
(d) The lower level of demand from<br />
those states which have a higher percentage<br />
of SC population as well as<br />
high incidence of cases of atrocities<br />
can only be explained by lack of interest<br />
in implementation of the Act.<br />
(viii) Investigation not done by the competent<br />
authorities: Investigations are<br />
invariably done in a shoddy manner<br />
and are often not done by the deputy<br />
superintendent of police as mandated<br />
by the Act, but by the junior judicial<br />
officers rendering the trial illegal. An<br />
analysis of numerous cases carried by<br />
various organisations show that<br />
investigations are done by a police<br />
officer of lower rank than a DSP.<br />
(ix) Committees either yet to be formed<br />
or are dysfunctional: State level and<br />
district level vigilance and monitoring<br />
committees are ineffective.<br />
Special officers, nodal officers are<br />
neither appointed nor are available<br />
for discharging their duties.<br />
In addition to the above deficiencies<br />
in the implementation of the PoA<br />
Act on individual cases, there are a<br />
number of provisions which speaks<br />
of institutionalised negligence and<br />
non-implementation too as seen in<br />
the table below.<br />
Gaps in implementation of SCP<br />
The special component plan (SCP) as<br />
a strategy for development of SCs, is<br />
traced to the resolution adopted by<br />
the conference of state ministers for<br />
backward classes held in April 1975.<br />
They adopted a resolution “calling<br />
for the quantification of efforts made<br />
by each sector”, and of benefits from<br />
schemes in each general sector for<br />
development of the scheduled castes.<br />
Vide letter dated 5.5.1979, Ajit<br />
Mazoomdar, secretary, planning<br />
commission directed all states to prepare<br />
separate SCPs. The letter stated:<br />
Provisions<br />
Rule 3-Precautionary and Preventive<br />
Measures<br />
“Because SCs were suffering from<br />
dual disabilities of severe economic<br />
exploitation and social discrimination,<br />
and who, while constituting<br />
only 15 percent of the total population<br />
of the country, accounted for a<br />
much larger proportion in the poverty<br />
belt in the country.”<br />
Various programmes and outlays<br />
in the SCP are envisaged not as small<br />
token provisions but they should<br />
adequately cater to a substantial proportion<br />
of the number of SC families<br />
in the relevant occupational categories.<br />
The plan is visualised as an<br />
States<br />
implemented<br />
11 23<br />
Rule 8-SC/ST Protection Cell 17 17<br />
Rule 9-Nodal Officer 29 5<br />
Rule 10-Special Officer 14 20<br />
Rule 15 (1)-Contingency Plan by State<br />
Government<br />
Rule 16-State Level Vigilance and<br />
Monitoring Committee<br />
Rule 17- District Level Vigilance and<br />
Monitoring Committee<br />
9 25<br />
21 13<br />
21 13<br />
Section 14 Special Courts 9 25<br />
Source: Reports of ministry of social justice & empowerment<br />
States not<br />
implemented<br />
effort to radically rework the whole<br />
strategy of Dalit welfare and empowerment.<br />
The broad objective of the<br />
SCP is to bring about comprehensive<br />
socio-economic and educational<br />
development of the scheduled castes.<br />
In 1980, the then prime minister<br />
Indira Gandhi declared that the SCP<br />
“is not only to be improved quantitatively<br />
and qualitatively but should<br />
also be implemented satisfactorily”.<br />
As per the guidelines issued by<br />
the Planning Commission 3 , the major<br />
objectives of the special component<br />
plan (SCP) are:<br />
(1) Substantial reduction in poverty<br />
(2) Creation of productive assets in<br />
favour of SCs to sustain the growth<br />
likely to accrue through development<br />
efforts<br />
(3) Human resource development of<br />
the SCs by providing adequate educational<br />
and health services<br />
(4) Provision of physical and financial<br />
security against all types of<br />
exploitation and oppression<br />
(5) Earmarked funds for SCP from<br />
central ministry/department plan<br />
outlay at least in proportion of SC<br />
population to the total population of<br />
the country<br />
(6) SCP funds should be non-divertible<br />
and non-lapsable<br />
(7) A dedicated unit may be constituted<br />
in every central ministry/<br />
department for the welfare and<br />
development of SCs as nodal unit for<br />
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DALIT RIGHTS<br />
formulation and implementation<br />
of SCP<br />
(8) Placing the funds earmarked for<br />
SCP at the disposal of every nodal<br />
unit concerned, which in turn will reallocate<br />
the funds to the sectoral<br />
departments for implementing<br />
schemes directly relevant to the<br />
development of scheduled castes<br />
(9) Placing the funds earmarked for<br />
SCP under separate budget<br />
head/sub-head for each central ministry/department<br />
for implementing<br />
the plan<br />
(10) Schemes should have direct benefits<br />
to individuals or families<br />
belonging to Dalit community.<br />
(11) Priority should be given for providing<br />
basic minimum services like<br />
primary education, health, drinking<br />
water, nutrition, rural housing, rural<br />
electrification and rural link road for<br />
SC hamlets/habitations<br />
(12) Schemes to develop agriculture<br />
and allied activities like animal husbandry,<br />
dairy development, vocational<br />
training, etc. that provide a<br />
source of livelihood to the SC population<br />
(13) Innovative projects that draw<br />
upon institutional finance to supplement<br />
plan allocations may be drawn<br />
upon<br />
A study done by Dalit Aarthik<br />
Adhikar Aandolan of national campaign<br />
on dalit human rights reveals<br />
the trends of allocations made under<br />
SCP in the union budget in the recent<br />
years:<br />
Financial<br />
Year<br />
Total Plan<br />
Expenditure*<br />
The findings of the study detected<br />
various lapses in the plan:<br />
(a) Allocations to SCP are critically<br />
low and flout the norms set by the<br />
planning commission<br />
(b) In the states of Bihar, Uttar<br />
Pradesh, Orissa and Madhya<br />
Pradesh the allocations are as per the<br />
proportion of the Dalit population<br />
but are only notional and do not have<br />
Due as per<br />
SCP<br />
innovative schemes that can benefit<br />
the SCs.<br />
(c) SCP allotments are diverted to<br />
non-SC related expenses or for other<br />
purposes<br />
(d) No dialogue with the SC community<br />
on the schemes relevant for their<br />
welfare takes place during the preparation<br />
of the union or states’ budgets<br />
In 2009-2010 union budget, Rs 23,<br />
287 crore is denied to the SCP. 4 The<br />
amount denied in the union budget<br />
alone during the past five years<br />
(2005-06 to 2009-2010) comes to the<br />
tune of Rs 76,690 crore. If one were to<br />
add the respective denials from the<br />
state budgets across the country, the<br />
denial crosses Rs 1,00,000 crore. One<br />
sees a similar trend of denial in the<br />
tribal sub-plan (TSP) too.<br />
Non-allocation of funds<br />
One of the objectives of the SCP is to<br />
provide “physical and financial security<br />
to SCs against all types of<br />
exploitation and oppression”. The<br />
ministry of social justice &<br />
Empowerment (MSJE) is entrusted<br />
mainly with the task of empowerment<br />
of the disadvantaged and<br />
marginalised target groups. In addition<br />
to several other responsibilities,<br />
the ministry is responsible for the<br />
enforcement of the PCR Act, 1955<br />
and SC/ST (PoA) Act, 1989.<br />
To effectively implement the Act,<br />
the ministry has to provide for special<br />
courts for the trial of offences and<br />
for the relief and rehabilitation of the<br />
SCP<br />
Allocation<br />
Denied<br />
Amount<br />
2005-06 (RE) 113043 18312.966 6578.59 11734.38<br />
2006-07(RE) 134757 21830.634 8473.94 13356.69<br />
2007-08(RE) 158491 25675.542 12367.77 13307.77<br />
2008-09(RE) 183528 29731.536 14727.02 15004.52<br />
Total amount denied to SCs from 2005-2009 53403.36<br />
*(All figures in Rs. crore)<br />
victims of such offences and for matters<br />
connected therewith or incidental<br />
thereto. The nodal ministry provides<br />
financial resources for implementation<br />
of the PCR Act, 1955 and<br />
the SC/ST (POA) Act, 1989 through<br />
the special central assistance (SCA)<br />
from the union government which<br />
amounts to 50 percent contribution<br />
to the total expenditure to the states<br />
Ministry of social<br />
justice & empowerment<br />
is entrusted mainly<br />
with the task of<br />
empowerment of the<br />
disadvantaged and<br />
marginalised target<br />
groups. In addition to<br />
several other<br />
responsibilities, the<br />
ministry is responsible<br />
for the enforcement of<br />
the PCR Act, 1955<br />
and SC/ST (PoA)<br />
Act, 1989<br />
and 100 percent of the total expenditure<br />
to the union territories. Despite<br />
the continuing violence against Dalit<br />
communities, the allocation of funds<br />
under the SCA shows a steady<br />
declining trend. There has, in general,<br />
been an inherent lack of interest<br />
and seriousness on part of planning<br />
and implementing machinery to<br />
achieve the objectives of the<br />
Constitution.<br />
The SC/ST Act mandates<br />
taluk/mandal level officers responsible<br />
for dispersing the TA/DA /minimum<br />
wages and compensation,<br />
which in turn has to be monitored by<br />
the district magistrate/collector and<br />
district monitoring and vigilance<br />
committee. Separate funds need to be<br />
given to police stations/courts<br />
towards TA/DA of victims and witnesses<br />
in FIR investigation and in<br />
turn has to be monitored by the<br />
superintendent of police (SP) and<br />
district judge (DJ). There is also clear<br />
direction that necessary arrangements<br />
for providing travelling and<br />
maintenance expenses, reimbursement<br />
of the payment of medicines,<br />
special medical consultation fee,<br />
costs towards blood transfusion, etc.<br />
should be made to the victims of<br />
atrocities.<br />
However, some fact-finding studies<br />
have brought out the following<br />
violations faced by the Dalit victims<br />
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COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
in accessing financial provisions<br />
guaranteed under the Act:<br />
(i) Victims of atrocity are not paid<br />
minimum wages compensation<br />
while they access the legal system<br />
(ii) Immediate relief in accordance to<br />
the SC/ST (PoA) Rules, 1995 is not<br />
provided<br />
(iii) Victims are not paid rehabilitation<br />
provided to them as per the<br />
Rules, 1995.<br />
(iv) Victims are neither paid any<br />
TA/DA/wage during investigation or<br />
trial nor are they provided with any<br />
medical expenses<br />
In view of this kind of dismal<br />
state of affairs, the NHRC, in 2002,<br />
suggested some additional measures<br />
that the state/national human rights<br />
commission may monitor provisions<br />
regarding payment of compensation<br />
to victims of atrocities and their rehabilitation.<br />
Secondly, states may be<br />
directed to make the district magistrate<br />
solely responsible for ensuring<br />
that the compensation money given<br />
to the victims is effectively utilised to<br />
provide them with sustainable rehabilitation.<br />
The parameters of such<br />
rehabilitation may be laid down in a<br />
manual. State and district level monitoring<br />
and vigilance committees<br />
may further monitor the status of<br />
rehabilitation. Special rapporteurs<br />
may report to the states/national<br />
human rights commission about the<br />
status of rehabilitation and morale of<br />
victims of atrocities in important<br />
cases.<br />
State and district-level vigilance<br />
and monitoring committees may<br />
meet regularly as per prescribed provisions<br />
and human rights organisations<br />
and activists working for and<br />
with scheduled castes may be<br />
involved in their deliberations as<br />
members/ invitees. Their proceedings<br />
may be adequately publicised<br />
and also placed on the website of the<br />
state governments.<br />
One cannot overlook the need for<br />
adequate financial outlays for the<br />
effective implementation of the<br />
SC/ST PoA Act, apart from genuine<br />
policy concern. For instance, in 2006-<br />
07, the special central assistance<br />
released by the central government<br />
for the purpose of effective implementation<br />
of the PoA Act was Rs 36.4<br />
crore which forms 50 percent of the<br />
proposed allocation. States are supposed<br />
to share equivalent to the<br />
amount received as SCA.<br />
Considering this the actual expenditure<br />
for the purpose is claimed to be<br />
Rs 71 crore which also includes the<br />
cost incurred for the maintenance of<br />
the trial courts. If one were to assume<br />
that 40 percent of the costs would go<br />
in maintaining the institutions and<br />
60 percent would be available to be<br />
allocated to the payment of compensation<br />
to victims in any year, during<br />
2007 the number of cases registered<br />
by the NCRB which attract compensation<br />
are 29,825. Minimum compensation<br />
when calculated towards travel,<br />
medical and minimum wages<br />
compensation for victims and witnesses<br />
as per the guidelines would<br />
work out to be approximately Rs 90<br />
crore whereas the available amount<br />
out of the proposed sum of Rs 71<br />
crore is only Rs 43 crore, less by more<br />
than half of what is needed.<br />
As per the report of the 29th<br />
standing committee, ministry of<br />
SJ&E, 2008, the status of SCP stands<br />
as follows:<br />
(i) Out of the 27 states/UTs availing<br />
SCA to SCSP funds, 18 states had not<br />
reported the flow of funds from their<br />
annual state plan outlay to SCSP.<br />
(ii) States like Bihar with SC population<br />
15.70 percent, Kerala with 9.8<br />
percent and Rajasthan (17.20 percent)<br />
have not allocated any funds from<br />
their annual plan to their SCSP during<br />
2007-08.<br />
(iii) Some states report under allocation<br />
of funds when compared to their<br />
population ratio like Andhra<br />
Pradesh has SC population of 16.20<br />
percent and SCSP outlay 7.53 percent,<br />
Himachal Pradesh got SC population<br />
24.70 percent, SCSP outlay 11<br />
percent, and in Punjab SC population<br />
is 28.90 percent whereas SCSP outlay<br />
is 26.02 percent. Out of the eight<br />
states/UTs which had allocated funds<br />
from their annual state plan outlay to<br />
SCSP only Gujarat, Tamil Nadu, UP<br />
and West Bengal have adhered to the<br />
prescribed norms and allocated<br />
funds for SCSP from their annual<br />
state plan outlay in proportion to the<br />
percentage of their SC population.<br />
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DALIT RIGHTS<br />
SC/ST PoA Act cases in 2007 and expenses for effective implementation (amount in Rs lakhs)<br />
State<br />
Cases for<br />
Compens<br />
ation in<br />
SC P0A<br />
Act)<br />
Average<br />
Relief &<br />
rehab per<br />
case<br />
Total<br />
Compens<br />
ation to<br />
be given<br />
No of<br />
Special<br />
Courts<br />
Average<br />
minimum<br />
Expenses<br />
for spl<br />
courts<br />
Total Spl<br />
Court<br />
expenses<br />
Fund<br />
needed<br />
for effective<br />
implementation<br />
of POA<br />
amount<br />
transferred<br />
from<br />
Centre<br />
to states<br />
Share of<br />
States<br />
AP 3261 0.35 1141.35 8 15 120 1261.35 310.49 310.49 640.37<br />
AP (NE) 0 0.35 0 12 15 180 180 N.A N.A NA<br />
Assam 125 0.35 43.75 15 0 43.75 9.5 9.5 24.75<br />
Bihar 2786 0.35 975.1 11 15 165 1140.1 26.63 26.63 1086.84<br />
C'garh 511 0.35 178.85 7 15 105 283.85 53.27 53.27 177.31<br />
Goa 0 0.35 0 15 0 0 4.45 4.45 -8.9<br />
Gujarat 1038 0.35 363.3 10 15 150 513.3 120.65 120.65 272<br />
Haryana 227 0.35 79.45 15 0 79.45 97.83 97.83 -116.21<br />
HP 87 0.35 30.45 15 0 30.45 0 0 30.45<br />
J&K 0 0.35 0 15 0 0 0 0 0<br />
J'khand 538 0.35 188.3 15 0 188.3 0 0 188.3<br />
K'taka 1827 0.35 639.45 7 15 105 744.45 664.37 664.37 -584.29<br />
Kerala 477 0.35 166.95 15 0 166.95 26 26 114.95<br />
MP 4106 0.35 1437.1 29 15 435 1872.1 856.1 856.1 159.9<br />
Maha 1146 0.35 401.1 15 0 401.1 397.31 397.31 -393.52<br />
M'pur 0 0.35 0 15 0 0 0 0<br />
M'laya 0 0.35 0 15 0 0 0 0<br />
Mizoram 0 0.35 0 15 0 0 0 0<br />
N'land 0 0.35 0 15 0 0 0 0<br />
Orissa 1355 0.35 474.25 15 0 474.25 49.75 49.75 374.75<br />
Punjab 177 0.35 61.95 15 0 61.95 40 40 -18.05<br />
Raj 4174 0.35 1460.9 17 15 255 1715.9 279.34 279.34 1157.22<br />
Sikkim 10 0.35 3.5 15 0 3.5 1.9 1.9 -0.3<br />
T'nadu 1737 0.35 607.95 4 15 60 667.95 0 0 667.95<br />
Tripura 8 0.35 2.8 15 0 2.8 0 0 2.8<br />
UP 6136 0.35 2147.6 40 15 600 2747.6 553.93 553.93 1639.74<br />
U'khand 71 0.35 24.85 15 0 24.85 0 0 24.85<br />
WB 3 0.35 1.05 15 0 1.05 0 0 1.05<br />
TOTAL 29800<br />
Gap<br />
The following table provides an<br />
analysis of the inadequate financial<br />
provision at the state level in the<br />
implementation of the SC/ST Act:<br />
The above table is an effort to correlate<br />
the expenditure that will be<br />
incurred by every state to maintain<br />
its special courts and the minimum<br />
compensation to be paid for the<br />
number of crimes registered by the<br />
national crimes record bureau.<br />
Almost all states show that the<br />
amount allocated and accessed by<br />
them under this provision is inadequate<br />
for the compensation and support<br />
to the victims.<br />
Recommendations<br />
(1) The government is duty bound to<br />
ensure the protection, welfare and<br />
empowerment of SCs who have suffered<br />
from caste and untouchabilitybased<br />
exclusion and discrimination<br />
throughout ages and still suffer the<br />
stigma of untouchability even after it<br />
has been declared as an offence<br />
under the law of the land.<br />
(2) The SC/ST PoA Act and the SCP<br />
are important measures to protect<br />
and promote the welfare and development<br />
of the Dalits and need to be<br />
given utmost importance in their<br />
successful implementation. Despite<br />
these provisions the atrocities continue<br />
unabated and the economic and<br />
development inequalities between<br />
SCs and non-SC/ST communities<br />
continue to increase.<br />
(3) The provision of SCA in SCP<br />
needs to be ensured. The allocation<br />
from the centre should be on the<br />
basis of the population and the rate<br />
of crimes of previous years.<br />
(4) The provisions under the SC/ST<br />
Act need to be strictly followed particularly<br />
in terms of immediate relief<br />
and aid to victims, support for legal<br />
aid, for constant follow up of the case<br />
and relief and rehabilitation.<br />
54<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
(5) The state needs to take its responsibility<br />
for prevention of atrocities<br />
more seriously by identifying the<br />
atrocity-prone areas, sensitising<br />
police officials, and ensuring easy<br />
access of officials to people.<br />
(6) The functioning of the special cells<br />
as well as the implementation of the<br />
SC/ST (PoA) Act to be brought under<br />
a separate social empowerment commissionerate<br />
specially created with<br />
three separate wings — relief and<br />
rehabilitation (pecuniary matters),<br />
investigation and prosecution (penal<br />
matters) and education and monitoring<br />
(matters relating to awareness,<br />
education, committees and monitoring<br />
cells). This commissionerate will<br />
be headed by an IAS officer, independent<br />
charge, not below the rank of<br />
secretary with two joint secretaries<br />
and a police officer not below the<br />
rank of inspector general holding<br />
charge of three units. This commissioner<br />
will be nominated as the nodal<br />
officer under the Act and Rules, 1995.<br />
(7) In the backdrop of a deep attitudinal<br />
mindset change that is required,<br />
non-responsive nature of the problem<br />
of untouchability, coupled with<br />
gaps in the implementation of the<br />
PoA Act despite the legislative provisions<br />
and executive orders, a massive<br />
public awareness and education campaign<br />
should be initiated directly by<br />
the central government. It is recommended<br />
that this task be entrusted to<br />
the ministry of information and<br />
broadcasting. This campaign should<br />
be on the scale of Sarva Shiksha<br />
Abhiyan or the ‘Pulse Polio’ scheme<br />
with the following guidelines:<br />
(i) The campaign to be implemented<br />
by the social empowerment commissionerate<br />
at the state level<br />
(ii) Hoardings, posters and pamphlets<br />
to be prepared specifically for<br />
this campaign<br />
(iii) This campaign will include<br />
Doordarshan and other radio programmes,<br />
special documentaries,<br />
road shows and poster campaigns<br />
(iv) The campaign may use grassroots<br />
cultural troupes, which will<br />
stage street plays and mobilise people<br />
on the issue<br />
The total cost of the awareness and<br />
education campaign — for cultural<br />
programmes per year may be estimated<br />
around Rs 225 crore, hoardings,<br />
posters and pamphlets to cost<br />
Rs 25 crore, and documentaries and<br />
The ministry of<br />
social justice &<br />
empowerment may<br />
formulate a new central<br />
sector scheme in the<br />
nature of contingency<br />
arrangement to provide<br />
instant monetary relief<br />
to the victims of<br />
relatively heinous<br />
offences of atrocities<br />
under the Scheduled<br />
Castes and the<br />
Scheduled Tribes<br />
(Prevention of Atrocities)<br />
Act, 1989<br />
other audio-visual media Rs 10 crore<br />
per year — totaling to Rs 260 crore.<br />
(8) In order to tackle the mammoth<br />
count of pending cases both at the<br />
regular courts as well as at the special<br />
designated courts, it is suggested that<br />
the special courts should come in line<br />
with the speedy trial courts to clear<br />
the backlog of pending cases. Each<br />
speedy trial court costs Rs 14 lakh per<br />
year and there are 192 atrocity-prone<br />
districts, which need an allocation of<br />
Rs 26.88 crore per year. This amount<br />
needs to be borne by the department<br />
of Justice from the SCSP allocation.<br />
(9) The concerned state government<br />
/UT administration should set up victims<br />
and witnesses protection cells at<br />
district levels under the social<br />
empowerment commissionerate<br />
headed by a nodal officer in collaboration<br />
with NGOs and lawyers<br />
amongst the scheduled castes, to provide<br />
protection and confidence to<br />
fight for justice.<br />
(10) The ministry of social justice &<br />
empowerment may formulate a new<br />
central sector scheme in the nature of<br />
contingency arrangement to provide<br />
instant monetary relief to the victims<br />
of relatively heinous offences of<br />
atrocities under the Scheduled Castes<br />
and the Scheduled Tribes (Prevention<br />
of Atrocities) Act, 1989. The relief<br />
amount under this scheme be directly<br />
provided to the victims by the<br />
ministry once the FIR of the offence<br />
under the Act has been registered, as<br />
apprised by the concerned state government/<br />
UT administration or state<br />
offices of the national commission for<br />
scheduled castes and national commission<br />
for scheduled tribes. The<br />
relief amount up to Rs two lakh be<br />
provided to each victim, with the<br />
approval of the ministry. This<br />
amount would be in addition to the<br />
minimum amount of relief as prescribed<br />
under Rule 12(4) of the<br />
www.combatlaw.org 55
DALIT RIGHTS<br />
Scheduled Castes and the Scheduled<br />
Tribes (Prevention of Atrocities)<br />
Rules, 1995. For this new scheme, an<br />
allocation of Rs five crore be provided<br />
for XI five year plan.<br />
(11) The concerned state government<br />
/union territory administration<br />
should set up a SC/ST cell in each<br />
police station to ensure timely registration<br />
of the cases under proper sections<br />
of the two Acts.<br />
(12) The department of justice in the<br />
central government may establish a<br />
special law academy to deal with the<br />
legal issues of educating the judicial<br />
officers, public prosecutors, police<br />
officials and other duty bearers and<br />
to carry out the necessary research<br />
for effective implementation of these<br />
two Acts. The cost of the initial set up<br />
of Rs 10 crore and the subsequent<br />
running costs of Rs four crore per<br />
year amounting to Rs 26 crore for the<br />
XI Plan, to be borne by the department<br />
of justice under the scheduled<br />
castes sub-plan (SCSP).<br />
(13) The department of justice to<br />
ensure that state governments issue<br />
government orders (GOs) from<br />
departments of revenue, medical &<br />
health and other concerned departments<br />
to prevent delay in getting<br />
important documents such as the<br />
FSL report, post-mortem report,<br />
wound certificates, caste certificate,<br />
etc within a specific timeframe of not<br />
more than 15 days and bring concerned<br />
officials under the purview of<br />
section 4.<br />
Annexure I<br />
The list of departments/ministries in the Government that have allocated ‘nil’ budgets to SCP<br />
Ministries/Departments<br />
Total Plan<br />
Allocation in 2007-08<br />
(Rs. Crore)<br />
Plan Allocation<br />
Earmarked for SCs<br />
(Rs. Crore)<br />
Dept. of Agr. Research & Education 1620 Nil<br />
Dept. of Animal Husbandry, Dairying & Fisheries 910 Nil<br />
Atomic Energy 4596 Nil<br />
Dept. of Chemicals & Petrochemicals 209 Nil<br />
Dept. of Fertilizers 45 Nil<br />
Ministry of Civil Aviation 200 Nil<br />
Ministry of Coal 250 Nil<br />
Dept. of Commerce 1475 Nil<br />
Dept. of Industrial Policy and Promotion 500 Nil<br />
Dept. of Posts 315 Nil<br />
Dept. of Telecommunications 340 Nil<br />
Ministry of Company Affairs 47 Nil<br />
Dept. of Consumer Affairs 213 Nil<br />
Dept. of Food & Public Distribution 85 Nil<br />
Ministry of Culture 557 Nil<br />
Ministry of Development of NE Regions 80 Nil<br />
Earth Sciences 690 Nil<br />
Ministry of Environment & Forest 1351 Nil<br />
Ministry of External Affairs 500 Nil<br />
Dept. of Economic Affairs 824.69 Nil<br />
Dept. of Expenditure 1 Nil<br />
Ministry of Food Processing Industries 250 Nil<br />
56<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
Dept. of AYUSH 488 Nil<br />
Dept. of heavy Industry 450 Nil<br />
Dept. of Public Enterprises 10 Nil<br />
Ministry of Home Affairs 459 Nil<br />
Housing and Urban Poverty Alleviation 500<br />
Ministry of Information & Broadcasting 475 Nil<br />
<strong>Law</strong> & Justice 245 Nil<br />
Ministry of Mines 154 Nil<br />
Ministry of New and Renewable Energy 626 Nil<br />
Ministry of Panchayati Raj 100 Nil<br />
Min. of Personnel, Public Grievances & Pensions 90 Nil<br />
Ministry of Planning 90 Nil<br />
Ministry of Power 5483 Nil<br />
Dept. of Land Resources 1500 Nil<br />
Dept. of Drinking Water Supply 7560 Nil<br />
Dept. of Scientific & Industrial Research 1070 Nil<br />
Dept. of Biotechnology 675 Nil<br />
Dept. of Shipping 753 Nil<br />
Dept. of Road Transport & Highways 12499.32 Nil<br />
Dept. of Space 3420 Nil<br />
Min. of Statistics & Programme Implementation 92 Nil<br />
Ministry of Steel 66 Nil<br />
Ministry of Tourism 953 Nil<br />
Dept. of Urban Development 2335.52 Nil<br />
Ministry of Water Resources 600 Nil<br />
Ministry of Minority Affairs 500 Nil<br />
(14) Since it is the duty of the national<br />
commission for scheduled castes<br />
under Article 338(9) of the Constitution<br />
to investigate and monitor all matters<br />
relating to the constitutional safeguards<br />
provided for the scheduled<br />
castes and to inquire into specific complaints<br />
with respect to the deprivation<br />
of rights and safeguards of the SCs,<br />
therefore, the commission should hold<br />
an annual meeting of the heads of the<br />
PCR cells set up in al states/UTs and<br />
the nodal and special officers designated<br />
under the PoA Act and review<br />
implementation of the two Acts.<br />
(15) Towards elimination of castebased<br />
discrimination and harassment<br />
in educational institutions, following<br />
course of action is recommended<br />
to be taken by the ministry<br />
of human resource development:<br />
(i) The educational institutions<br />
should establish internal mechanisms<br />
to receive and register a complaint<br />
and maintain the confidentiality<br />
of all parties in the interest of fairness<br />
to both complainant and<br />
respondent. The institutions shall not<br />
provide disclosure unless required<br />
by legal or disciplinary processes.<br />
(ii) The educational institutions<br />
should frequently take disciplinary<br />
action whenever a complaint of any<br />
caste-based harassment is substantiated.<br />
The disciplinary action should<br />
also be taken against those who bring<br />
false and frivolous charges.<br />
(iii) The institutes should integrate<br />
caste discrimination component as<br />
part of workshops and seminars for<br />
teachers, professors, officials, administrators<br />
and participants, wherever<br />
as the case may be. The procedures<br />
should be monitored by the institution<br />
and reviewed periodically.<br />
www.combatlaw.org 57
DALIT RIGHTS<br />
Annexure II<br />
Sl.<br />
Name of<br />
States/UTs<br />
Fund Released<br />
2005-06 2006-07<br />
2007-08<br />
(Dec-07)<br />
(Fig. in Lakh)<br />
2008-09<br />
1 Andhra Pradesh 338.383 270.860 310.49 787.56<br />
2 Assam - - 9.5 -<br />
3 Bihar 13.000 13.000 26.63 27.28<br />
4 Chhattisgarh 46.380 52.345 53.27 40.748<br />
5 Goa 0.100 - 4.45 1<br />
6 Gujarat 281.030 240.085 120.65 217.46<br />
7 Haryana 73.960 61.070 97.83 59.925<br />
8 Himachal Pradesh - - - 10.45<br />
9 Jharkhand - 40.000 - -<br />
10 Karnataka 852.662 780.165 664.37 670.38<br />
11 Kerala 117.250 98.616 26 135.155<br />
12 Madhya Pradesh 820.010 712.195 856.1 574.745<br />
13 Maharashtra 426.860 481.334 397.31 274.978<br />
14 Orissa 01.20(Adhoc) 7.780 49.75 60<br />
15 Punjab 21.375 55.867 40 50<br />
16 Rajasthan 87.000 21.000 279.34 157.895<br />
17 Sikkim 1.750 2.425 1.9 5.95<br />
18 Tamilnadu 160.720 43.000 235.14<br />
19 Tripura - - - 0.5<br />
20 Uttar Pradesh 414.105 663.235 553.93 931.285<br />
21 UA/UK 37.000 4.000 - 5.769<br />
22 West Bengal - - - -<br />
23 And.& Nicobar Islands - - - -<br />
24 Delhi - - - -<br />
25 Dadra & Nagar Haveli 50.000 56.802 42.54 2.655<br />
26 Pondicherry 37.945 40.000 40.79 50<br />
27 Chandigarh - - 3 3<br />
28 Daman & Dui - 3.9 4.571<br />
Total 3831 .000 3643.779 3581.75 4306.45<br />
Source: Ministry of social justice & empowerment, Govt. of India, New Delhi. (www.socialjustice.nic.in)<br />
Footnotes:<br />
1. http://www.dnaindia.com/india/report_pmshocked-over-low-conviction-rate-of-casesunder-sc-st-act_1288180<br />
2. Various reports of SC/ST Commission,<br />
NHRC report on Atrocities against Dalits,<br />
Punnaiah Commission report, reports of<br />
concerned ministries and reports/studies of<br />
various human rights organizations<br />
as well as judgments at various levels<br />
were analysed to identify major<br />
lacunae in enforcement of the Act<br />
from registration of complaint to<br />
judgement.<br />
3. Eleventh Plan Year Plan 2007-2012,<br />
Vol I, Planning Commission, GOI, 2008<br />
4. Calculations are made based on the<br />
Union Budget presented to the Parliament<br />
in July 2009<br />
–The authors are associated<br />
with the Dalit Arthik<br />
Adhikar Andolan/NCDHR<br />
58<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
Tardy implementation<br />
of the Act in Rajasthan<br />
Untouchability and caste-based<br />
discrimination is still alive in<br />
its very crude form in<br />
Rajasthan, especially in the villages<br />
despite constitutional safeguards,<br />
special enactments like the PCR Act,<br />
SC/ST Act, 1989 and its Rules 1995.<br />
The atrocities against Dalits, women<br />
and marginalised people, are<br />
increasingly rising day by day in the<br />
state partly because of Dalit assertion<br />
and mainly due to the apathetic attitude<br />
of the state machinery to combat<br />
it.<br />
The villages in Rajasthan are the<br />
den of inhumane practice of<br />
untouchability where Dalits are<br />
barred from entering the temples, no<br />
access to water resources, Dalit<br />
bridegrooms are not allowed to ride<br />
on horseback, Dalits cannot even<br />
wear clothes of their choice in certain<br />
pockets of Rajasthan. Though the<br />
Dalit participation in social activities<br />
has slightly improved, yet, the SCs<br />
and STs have to wait for their turn to<br />
eat only after the non-Dalits have finished<br />
off their palates, and in some<br />
places the former are even expected<br />
to wash the dishes of the upper<br />
castes.<br />
In Rajasthan, Dalit children are<br />
still growing under the stigma of<br />
being from an inferior and untouchable<br />
class. In many places, Dalit students<br />
are asked to do manual work<br />
in schools and to sit in the last row of<br />
the classroom. All the more, in some<br />
places they are served mid-day meal<br />
separately from other children. In the<br />
interiors of Rajasthan, incidents of<br />
barbers refusing to cut hair of Dalits<br />
have been reported.<br />
The centre for dalit rights, based<br />
in Jaipur, has been involved in monitoring<br />
of atrocities and excesses<br />
against Dalits and women in<br />
Rajasthan, along with follow ups of<br />
the serious cases of atrocities with<br />
the state, district officials and various<br />
other forums like human rights commission,<br />
SC and ST commission and<br />
women commission, to ensure that<br />
their rights are fully and effectively<br />
protected by strict enforcement of<br />
legal safeguards like the SC/ST (PoA)<br />
Act. Figures of atrocities monitored<br />
by CDR during 2008 in the state are<br />
given below:<br />
Type of Atrocity<br />
No.<br />
Untouchability Practice 380<br />
Murder 77<br />
Rape 72<br />
Violence against Women 149<br />
Mass violence 99<br />
Violence against Children 29<br />
Bonded labour 9<br />
Land Dispute 140<br />
Custodial Torture/Police Torture 27<br />
Assault on Dalit Bridegroom 11<br />
Violence during Elections 181<br />
Negligence at the part of the<br />
Administration<br />
Police negligence and collusion<br />
Dalit victims in Rajasthan are<br />
deterred from making complaints of<br />
57<br />
Others 30<br />
Total 1,261<br />
Topping the list of<br />
atrocities committed<br />
against Dalits, the<br />
remedial steps taken for<br />
the welfare of the SC/ST<br />
victims of atrocities in<br />
Rajasthan have been<br />
almost negligible. The<br />
affected groups<br />
experience violence on<br />
daily basis and the<br />
deterrence envisaged in<br />
the laws especially<br />
enacted for this purpose is<br />
not in evidence because<br />
the implementation of<br />
important criminal laws<br />
like the PCR Act and<br />
SC/ST (PoA) Act has<br />
been dismal, writes<br />
PL Mimroth<br />
www.combatlaw.org 59
DALIT RIGHTS<br />
Summary of a case where<br />
police diluted rape charges<br />
The police headquarters, Jaipur has<br />
ordered an enquiry against the DSP<br />
Rajendra Gupta who had toned down<br />
charges against a rape accused by<br />
deleting a section of the charge under<br />
the SC/ST (PoA) Act without giving<br />
proper justification. The PHQ believes<br />
that by doing so, the Dy SP has<br />
allegedly avoided a life term for the<br />
accused in the rape case of a Dalit<br />
woman.<br />
The incident took place under the<br />
Kotwali police station of Sawai<br />
Madhopur district (Rajasthan) on July<br />
23, 2007. The accused, Ghan Shyam,<br />
Ram Swroop & Ram Lal had allegedly<br />
beaten up a Dalit girl brutally and<br />
later raped her.<br />
The police lodged an FIR against<br />
the three accused under provisions of<br />
sections 376(f) of the IPC (gang rape),<br />
323 (punishment for voluntarily causing<br />
hurt), 341 (punishment for<br />
wrongful restrain) and section 3<br />
(I)(XII), 3(2)(V) of the SC & ST Act and<br />
entrusted investigation to the then<br />
deputy superintendent of police<br />
Rajendra Gupta.<br />
Police had arrested the accused<br />
and a chargesheet was produced<br />
before the trial court on October 17,<br />
2007 but it was found that the initial<br />
charges made under the sections of<br />
the SC/ST Act were missing in the<br />
chargesheet.<br />
atrocities and as a result FIRs are<br />
rarely registered or if so registered<br />
late. Scheduled castes and scheduled<br />
tribes are discouraged from registering<br />
the case, to dilute the seriousness<br />
of the violence, to shield accused<br />
from getting arrested and weaken<br />
the prosecution and in some cases,<br />
the police themselves inflict violence.<br />
Under reporting of atrocities under<br />
the SC/ST (PoA) Act is a very common<br />
phenomenon. It has been further<br />
observed "even in respect of<br />
heinous crimes, the police machinery<br />
in Rajasthan has been deliberately<br />
avoiding to register cases under the<br />
SC/ST Act". The non- registration of<br />
cases, apart from reflecting caste bias<br />
and corruption, has also been<br />
attributed to the pressure on the<br />
police to keep reported crime rates<br />
low in their jurisdiction. In addition,<br />
the undue political and administrative<br />
pressure on the police force is<br />
also one of the factors leading to nonregistration<br />
of the cases of Dalit victims.<br />
The murder cases in the Dalit<br />
community are often termed by<br />
police as suicide or accident to shield<br />
the perpetrators.<br />
The study conducted by the CDR<br />
in 2008 also indicates that around 12<br />
percent of the FIRs were lodged in<br />
Rajasthan as a result of legal intervention<br />
by filing petition in the<br />
courts under section 156 (3) of CrPC.<br />
In many cases where police do<br />
register a case under the SC/ST Act,<br />
they do not cite proper sections. For<br />
serious crimes, which include murder,<br />
rape, destruction of property,<br />
dispossession of land and fouling of<br />
drinking water sources, etc., police<br />
are registering cases under section<br />
3(1)(X) of the Act. This section is<br />
related to insulting or intimidating a<br />
SC/ST person with intent to humiliate<br />
him/her in public view. One of<br />
the reasons for police commonly citing<br />
this section is that this clause<br />
denotes to the most minor offence<br />
under the Act and generally attracts<br />
the least punishment or to do away<br />
with the punishment. Majority of the<br />
cases are never brought within the<br />
purview of the law at all due to<br />
police failure/refusal to register the<br />
case, thereby, neglecting their official<br />
duties and colluding with the perpetrators<br />
of atrocities.<br />
Chargesheet delay<br />
Besides non-registration of cases<br />
despite merit, there are delays in<br />
investigation and manipulation of<br />
witnesses and evidences, all contributing<br />
to reduce the effectiveness<br />
of legislation on atrocities. The CDR<br />
survey revealed that in Rajasthan,<br />
mere 4.9 percent of cases registered<br />
under the Atrocities Act were actually<br />
chargesheeted. Only 9.3 percent<br />
cases were chargesheeted within the<br />
stipulated time of 30 days and even if<br />
it is the CrPC time limit of 90 days,<br />
chargesheets are filed only in 31 percent<br />
cases. For about 28 percent of<br />
cases the investigating agency is taking<br />
more than 365 days to book the<br />
culprits. Therefore, delay in investigation,<br />
partial and blind role of the<br />
investigating officer and delayed<br />
chargesheet filing is a common feature<br />
with regard to the atrocity cases<br />
of Dalits.<br />
The NHRC and the Justice<br />
Punnaiah Commission of Inquiry in<br />
Andhra Pradesh have stated in their<br />
reports, "the sub-Inspector or circle<br />
inspectors did not arrest the perpetrators<br />
who committed the atrocities<br />
even though the sub-Inspector or the<br />
inspector of police recorded FIRs and<br />
registered cases". Non-arrest of perpetrators<br />
in serious offences are<br />
resulting in quashing of the whole<br />
case since the accused resort to<br />
unethical means like pressurising the<br />
victim to withdraw the case, intimidating<br />
the witness or the victim,<br />
destroying/diluting the medical evidences<br />
connected with the case etc.<br />
In this long testing process the victim<br />
and his/her family is completely broken<br />
down and lose faith in the rule of<br />
the law. In number of cases, it is also<br />
observed that the main perpetrators<br />
of an atrocity sometimes co-opt a few<br />
Dalits members with them, taking<br />
advantage of local differences among<br />
the Dalit community, and even promote<br />
and engineer crimes but get<br />
them executed by the Dalits only.<br />
It has been witnessed that in<br />
number of cases, police has colluded<br />
with the accused in filing false<br />
counter cases against Dalit victims. It<br />
is generally observed "the tendency,<br />
on the part of police in not registering<br />
cases on the complaint given by<br />
the SCs and STs is on the increase. At<br />
the same time, the tendency on the<br />
part of police to entertain indiscriminately<br />
the counter complaints and to<br />
arrest the SC complainants on the<br />
basis of counter complaints is<br />
increasing".<br />
"When the SC or ST victim of<br />
atrocity reports to the sub-inspector<br />
or circle inspector in-charge of a<br />
police station, if he records an FIR<br />
and registers a case, the sub-inspector<br />
or circle inspector should act on<br />
the complaint of the victim and arrest<br />
the assailant or the one who committed<br />
the atrocity. But, the sub-inspector<br />
or circle inspector who recorded<br />
the FIR and registered the case did<br />
not arrest the assailants except in rare<br />
cases." (NHRC report on atrocities<br />
against scheduled castes, 2002).<br />
The NHRC and the Punnaiah<br />
Commission further stated in their<br />
representations that when a counter<br />
complaint was registered by the<br />
accused against the Dalit victims, it<br />
was filed obviously with the sole<br />
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DALIT RIGHTS<br />
intention to counter blasé the complaint<br />
filed by the victims. As a result<br />
of the counter cases, the real victims<br />
of atrocities are being arrested and<br />
subjected to criminal litigations. This<br />
theory of 'counter complaints', it is<br />
found, is hatched by police at the<br />
instance of the perpetrators, to<br />
mount pressure on Dalit victims to<br />
compromise with the culprits and<br />
withdraw their cases. Police invariably<br />
colludes with the perpetrators<br />
of violence and render injustice to<br />
real Dalit victims. CDR has traces<br />
cases where this type of methodology<br />
is also adopted by the police<br />
authorities in Rajasthan.<br />
Role of State<br />
Despite numerous government<br />
orders for implementing the SC/ST<br />
(PoA) Act, 1989 and Rules, 1995, setting<br />
up of SC/ST cells at different levels<br />
in the state, and implementation<br />
of relief and rehabilitation measures<br />
under the SC/ST Act & Rules, compensation<br />
and rehabilitation rights<br />
continue to be denied where atrocities<br />
against Dalits take place. The<br />
breach of duties by the state is committed<br />
in the following ways:<br />
(1) Not conducting on-the-spot<br />
enquiry on the site of atrocity immediately<br />
by senior district officials,<br />
thereby evading duty to give relief<br />
and compensation.<br />
(2) Inordinate delay and total denial<br />
in distribution of cash compensation<br />
and other legally entitled monetary<br />
relief provisions for heinous crimes<br />
ensured under SC/ST Act.<br />
(3) Not providing allowances,<br />
including travel allowance relating to<br />
trial and investigation, to witnesses<br />
and victims, maintenance expenses<br />
and daily allowance, medical expenses<br />
etc.<br />
(4) The state of Rajasthan ignores<br />
basic problems of Dalits in the name<br />
of "law and order".<br />
The state and district administration<br />
do not recognise caste-based discrimination<br />
and tension between<br />
Dalits and non-Dalits resulting in<br />
atrocities as social and human rights<br />
violations and wherever Dalits have<br />
resisted and emerged united, their<br />
voice and efforts are suppressed.<br />
Dalit rights activists are implicated in<br />
false cases and hurdles are created<br />
for Dalits only at the behest of dominant<br />
castes/groups duly supported<br />
There is a due need<br />
for strengthening the<br />
enforcement of the<br />
provisions of SC & ST<br />
(PoA) Act, 1989 and<br />
Rules, 1995 for effective<br />
prosecution and speedy<br />
justice in atrocity cases<br />
in Rajasthan<br />
by local political and powerful interests.<br />
The Rajasthan government has<br />
miserably failed to set up effective<br />
state and district level monitoring<br />
and vigilance committees provided<br />
under the Rule 16 and 17 of the SC &<br />
ST Rules, 1995 for the purpose of<br />
monitoring the implementation of<br />
the SC/ST Act in the state. These<br />
statutory committees are entrusted<br />
with tracking the states and prosecution<br />
of cases registered under the<br />
Act, reviewing relief and compensation<br />
provided to victims and evaluating<br />
the role and performance of different<br />
officers and agencies responsible<br />
for implementation of the Act.<br />
Since 1995 onwards till date, the state<br />
government has constituted only two<br />
state-level monitoring committees<br />
but their meetings were never convened<br />
and they hardly functioned.<br />
As far as the Constitution and functioning<br />
of district-level monitoring<br />
and vigilance committees are concerned,<br />
it is revealed from the CDR<br />
survey that they are virtually defunct<br />
barring 2-3 districts out of 33 districts<br />
in Rajasthan. Since, these committees<br />
are not functioning properly, effectively<br />
and have no visibility as such,<br />
the state should be held accountable.<br />
Perhaps, Rajasthan is one of the<br />
most atrocity-prone states in India<br />
and according to national crime<br />
records bureau (NCRB) it stands second<br />
in the country in terms of violence<br />
against women and Dalits. The<br />
various reports, statistics and media<br />
reportage on violations of Dalit<br />
rights are big indicators in this<br />
respect. In spite of these glaring facts,<br />
the state government has not waken<br />
up from its slumber and is yet to<br />
declare the "atrocity-prone<br />
district/area" in the state. It appears<br />
that the government deliberately<br />
declined to enforce and implement<br />
the special preventive and protective<br />
measures as enumerated in the SC &<br />
ST (PoA) Act, 1989 and Rules 1995 to<br />
combat atrocities in the state. It is<br />
high time that the exclusive special<br />
courts should be set up in atrocityprone<br />
districts for trial of cases under<br />
the Act and that these courts should<br />
not take up any other cases.<br />
Scanner on SPP<br />
The survey conducted by CDR about<br />
the role and performance of special<br />
public prosecutors in special courts<br />
has revealed that many SPP do not<br />
cooperate with the Dalit victims, witnesses<br />
and often join hands with perpetrators<br />
or their lawyers to weaken<br />
the case of the victim for obvious reasons<br />
and other consideration. In<br />
number of cases, the SPP behaves<br />
like a defence lawyer in and outside<br />
the court instead of the lawyer of the<br />
victim resulting in acquittal of majority<br />
of the accused. This problem<br />
needs to be seriously reviewed by the<br />
state government and some mechanism<br />
to oversee the performance of<br />
the special public prosecutor must<br />
be evolved.<br />
Hence, there is a due need for<br />
strengthening the enforcement of the<br />
provisions of SC & ST (PoA) Act,<br />
1989 and Rules, 1995 for effective<br />
prosecution and speedy justice in<br />
atrocity cases in Rajasthan. There is a<br />
need to put a check and balance on<br />
the obstacles in attaining right to<br />
speedy trial and also to large number<br />
of acquittals made by abuse of<br />
this Act.<br />
–The writer is an Advocate,<br />
Centre for Dalit Rights, Jaipur<br />
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DALIT RIGHTS<br />
Recommendations<br />
of Justice Punnaiah<br />
Commission<br />
The safeguards ensured<br />
by the Constitution of<br />
India have become<br />
merely "proclamation of<br />
theory" in the backdrop<br />
of non-implementation<br />
of the laws meant for<br />
protection and<br />
development of Dalits.<br />
Imran Ali highlights the<br />
recommendations made<br />
by Justice Punnaiah<br />
Commission of Inquiry<br />
and the amendments<br />
proposed by the<br />
National Commission<br />
for SC/ST to eventually<br />
root out the caste bias,<br />
closely intertwined with<br />
culture, religion, history<br />
and contemporary<br />
politics<br />
"The incident of assault and abuses<br />
is nothing but because [the victim]<br />
belongs to SC and he is lower in the<br />
eye of [the] upper caste person<br />
accused. The offence is not only<br />
against [the victim] but against<br />
society and ultimately the nation."<br />
–Sri N. Balayogi, special<br />
sessions judge, Guntur<br />
Case, Guntur (55/S/2003)<br />
The Scheduled Castes/<br />
Scheduled Tribes (Prevention<br />
of Atrocities) Act was enacted<br />
for the protection against cruelty and<br />
torture inflicted on the SC/ST people<br />
by non-SCs/STs on September 11,<br />
1989. The Constitution of India abolishes<br />
the age-old phenomenon of<br />
"untouchability" and ensures numerous<br />
safeguards for the betterment<br />
and development of Dalits and<br />
tribals.<br />
But articles become merely<br />
"proclamation of theory" like many<br />
such others that need to be made<br />
operational. Nearly six years<br />
after the Constitution enactment<br />
Untouchability (Offences) Act, 1955<br />
came into force with a superficial<br />
objective to remove humiliation and<br />
multifaceted harassments meted to<br />
the Dalits, the lacunae and loopholes<br />
drove the Indian government to project<br />
a major revamp of this legal<br />
instrument. In 1976, it refurbished as<br />
Protection of Civil Rights Act. In<br />
spite of various measures adopted to<br />
improve appalling socio-economic<br />
conditions of the SCs and STs they<br />
have remained helpless. The Dalits<br />
have been subjected to various<br />
offences, indignities and humiliations<br />
and harassments. And when<br />
they assert their rights and oppose<br />
the practice of untouchability against<br />
them the vested interests try to browbeat<br />
them down and bully them.<br />
It was felt that the normal provisions<br />
of the existing laws like the<br />
PCR Act and the Indian Penal Code<br />
have been found inadequate to check<br />
the atrocities. Despite all the previous<br />
legislations, gross indignities<br />
and offences in different dimensions<br />
committed against the scheduled<br />
castes and tribes had not ebbed.<br />
Taking note of the dismal situation<br />
and condition of the SCs Parliament<br />
passed the Scheduled Castes and<br />
Scheduled Tribes (Prevention of<br />
Atrocities) Act in 1989. The statement<br />
of objects and reasons appended to<br />
the Bill reads "despite various measures<br />
to improve the socio-economic<br />
conditions of SCs & STs, they remain<br />
vulnerable. They are denied a number<br />
of civil rights; are subjected to<br />
various offences, indignities, humiliations<br />
and harassment. They have, in<br />
several brutal incidents, been<br />
deprived of their life and property.<br />
Serious atrocities are committed<br />
against them for various historical,<br />
social and economic reasons."<br />
The preamble of the Act states<br />
"prevent the commission of offences<br />
of atrocities against the members of<br />
scheduled castes and tribes, to provide<br />
for special courts for the trial of<br />
such offences and for the relief and<br />
rehabilitation of the victims of such<br />
offences and for matters connected<br />
therewith or incidental thereto." So<br />
the objectives of the SC/ST Act very<br />
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DALIT RIGHTS<br />
clearly emphasise the intention of the<br />
government to deliver justice to these<br />
communities through affirmative<br />
action so as to enable them to live in<br />
society with dignity and self-esteem<br />
and without fear or violence or suppression<br />
from the dominant castes.<br />
However, the experiences of victims<br />
and witnesses, activists and<br />
organisations narrate a different<br />
story of failed or delayed justice<br />
delivery system and clearly shows<br />
that the implementation of the Act<br />
still leaves much to be desired.<br />
Though the Act has made a petite<br />
impact in curbing atrocities against<br />
SCs/STs through deterrent punishment,<br />
remedial measures to be taken<br />
by the authorities and also through<br />
rare provisions placing mandatory<br />
on the state government the responsibility<br />
to take steps for the effective<br />
implementation of the Act and<br />
spelling out illustratively some of the<br />
possible measures, its implementation<br />
yet suffers from several deficiencies.<br />
The national commission for<br />
scheduled castes and tribes, NHRC,<br />
and Justice Punnaiah Commission<br />
critically examined the deficiencies<br />
in the Act and suggested various<br />
amendments to it.<br />
National commission for SC/ST<br />
proposed an amendment to add<br />
'refused to pay wages or contract<br />
wages for the labour' in the 3(1)(vi)<br />
clause which presently says "compels<br />
or entices a member of SC or ST to do<br />
'beggar' or other similar forms of<br />
forced or bonded labour other than<br />
any compulsory service for public<br />
purposes imposed by the government".<br />
Similarly, the deletion of<br />
entire section 3 (l)(xii) for being in a<br />
position to dominate the will of a<br />
woman belonging to SC or ST and<br />
uses that position to exploit her sexually<br />
to which she would not have<br />
otherwise agreed and renumbering<br />
of sections 3(l)(xiii), (xiv) and (xv) as<br />
sections 3(l)(xii), 3(l)(xiii), and<br />
3(l)(xiv) has been proposed. The<br />
incorporation of new sections like<br />
3(l)(xv) (xvi) and 3(2)(i) and (iii) dealing<br />
with blackmails of SC/ST persons,<br />
boycott or support of the boycott<br />
of SC/ST people, being in a position<br />
to dominate the will of a woman<br />
belonging to SC or ST and uses that<br />
position to exploit her sexually and<br />
to which she would not otherwise<br />
have agreed, shall be punishable<br />
with rigorous imprisonment for a<br />
term which shall not be less than 10<br />
years but which may be for life and<br />
shall also be liable to fine and penalty<br />
respectively.<br />
Section 4 of the Act says,<br />
"Whoever, being a public servant but<br />
not being a member of SC or ST community,<br />
willfully neglects his duties<br />
required to be performed by him<br />
under this Act, shall be punished for<br />
a term which shall not be less than<br />
six months but which may extend to<br />
one year". The national commission<br />
for SC/ST has proposed to delete the<br />
words 'but not being a member of a<br />
SC or ST' and to the punishment part<br />
add 'six months but which may<br />
extend to two years'. It has also been<br />
proposed that section 4 (1) shall also<br />
incorporate, "abettors of offences are<br />
equally punishable, as provided<br />
under this Act."<br />
Furthermore section 14 which is<br />
for the purpose of providing speedy<br />
trial states "the state government<br />
shall with the concurrence of the<br />
chief justice of the high court by notification<br />
in the official Gazette, specify<br />
for each district a court of session<br />
to be a special court to try the<br />
offences under this Act. Its been proposed<br />
to replace the word 'specify'<br />
with the word 'create' and the words<br />
'court of session to be a special court'<br />
with the words 'special court of the<br />
level of sessions court". There has<br />
also been a proposal to add section<br />
24 in the Act stating that all offences<br />
under this Act are cognizable and<br />
subject to summary trial.<br />
The national commission for SC<br />
and ST has also proposed amendments<br />
in the SC & ST (Prevention of<br />
Atrocities Rules), 1995 beginning<br />
from amending rule 7(2) which says<br />
"the investigating officer so appointed<br />
under sub-rule (1) shall complete<br />
the investigation on top priority<br />
within thirty days and submit a<br />
report to the superintendent of police<br />
who in turn will immediately forward<br />
the report to the director general<br />
of police of the state government"<br />
by adding 'and trials be completed<br />
within three months' at the end of<br />
this section. The commission has also<br />
asked to add a new section - rule 7(3)<br />
enabling the trial to take place in the<br />
special court itself as it is observed<br />
that in some of the states, specified<br />
courts are the courts of sessions and<br />
therefore the trial of offences takes<br />
place through committal proceedings<br />
in lower courts which is detrimental<br />
for speedy trials. The commission<br />
also proposed to renumber<br />
the old section 7(3) as section 7(4).<br />
Recommendations<br />
The SC/ST (PoA) Act, 1989<br />
(1) In section 3(X), delete the words<br />
"with intent to humiliate" since the<br />
expression intentionally insults or<br />
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DALIT RIGHTS<br />
intimidates contain the necessary<br />
"mens rea". The amended clause (X)<br />
of section 3 may be read as follows:<br />
"Intentionally insults or intimidates<br />
a member of scheduled castes<br />
or scheduled tribe in any place within<br />
public view".<br />
(2) In section 3(XI), remove the<br />
expression "With intent to dishonour<br />
or outrage her modesty". An assault<br />
or use of force on any woman or man<br />
itself is an offence under section 323<br />
and 352 of the IPC, the expression<br />
"with the intent to dishonour or outrage<br />
her modesty" is unnecessary.<br />
The amended clause (XI) of the same<br />
section should be read as below:<br />
"Assaults or uses force to any<br />
woman belonging to scheduled caste<br />
or scheduled tribe".<br />
(3) The Punniah Commission also<br />
recommended to delete the expression<br />
"intending to cause or knowing<br />
it to be likely that he will thereby<br />
cause damage" in section 3(2)(iii) of<br />
the PoA Act as this expression is<br />
superfluous since "whoever commits<br />
mischief by fire or any explosive substance,<br />
he intends to cause damage to<br />
any property or he knows it to be<br />
likely that he will thereby cause damage<br />
to any property". The amended<br />
clause should be read as: "Whoever<br />
commits mischief by fire or any<br />
explosive substance to any property<br />
belonging to a member of a scheduled<br />
caste or scheduled tribe, shall be<br />
punishable with..."<br />
(4) Amend section 3(2) to include<br />
"any form or disrespect or disfigure<br />
or defilement or damage to the statues<br />
of Babasaheb Dr BR Ambedkar<br />
as insulting the SC community as<br />
well as an insult to the nation and be<br />
punishable with rigorous imprisonment<br />
for a term of three years."<br />
SC/ST (POA) Rules, 1995<br />
Some states viz. Andhra Pradesh,<br />
Madhya Pradesh, Maharashtra,<br />
Orissa and Uttar Pradesh have raised<br />
an issue to amend rule 7(1) of the SCs<br />
& STs (Prevention of Atrocities)<br />
Rules, 1995 so as to provide for an<br />
appointment of an inspector of police<br />
instead of deputy superintendent of<br />
police as the investigating officer in<br />
the cases of atrocities against SCs and<br />
STs. Such a view has been largely<br />
held on account of non-availability of<br />
State governments<br />
of Madhya Pradesh<br />
and Maharashtra<br />
have suggested<br />
that relief can be<br />
given to women<br />
victims of atrocity<br />
on account of<br />
outraging their modesty, without medical<br />
examination, while the government of Andhra<br />
Pradesh has suggested for amending the SCs &<br />
STs (Prevention of Atrocities) Rules, 1995<br />
regarding payment of relief to the victims<br />
as much number of DSPs as required<br />
to investigate such cases. This issue<br />
was raised earlier also and the ministry<br />
of home affairs opined in<br />
August, 1998 that framers of law<br />
have provided for investigating officer<br />
of higher rank in the case of atrocities<br />
against SCs/STs and this might<br />
have been done, keeping in view the<br />
sensitivity of cases to be investigated<br />
by an officer, who has higher sense of<br />
responsibility, objectivity, more<br />
responsiveness, sense of ability and<br />
justice to perceive the implication of<br />
the case. The ministry accordingly<br />
opposed the proposal to provide for<br />
investigation by an officer of the rank<br />
of inspector of police.<br />
The government of Karnataka has<br />
suggested that the rate and mode of<br />
payment of compensation differ<br />
from case to case. For instance, in<br />
case of death, only 75 percent of the<br />
compensation is paid after postmortem<br />
and the remaining 25 percent<br />
is paid after conviction by the<br />
lower court. In some other cases, the<br />
ratio of compensation paid initially<br />
varies from 25 percent to 50 percent<br />
when the chargesheet is sent to the<br />
court and the balance is paid after the<br />
conclusion of the trial or conviction<br />
in the lower court. Since the disposal<br />
of atrocity cases admitted in the court<br />
takes years together resulting in<br />
denial of full benefit of compensation<br />
to the SC/ST victims of atrocities. As<br />
such suitable amendment to the<br />
Rules, 1995 regarding mode of payment<br />
of compensation to victims of<br />
atrocity be considered. State governments<br />
of Madhya Pradesh and<br />
Maharashtra have suggested that<br />
relief can be given to women victims<br />
of atrocity on account of outraging<br />
their modesty, without medical<br />
examination, while the government<br />
of Andhra Pradesh has suggested for<br />
amending the SCs & STs (Prevention<br />
of Atrocities) Rules, 1995 regarding<br />
payment of relief to the victims. It<br />
pointed out that the central government<br />
might amend the annexure of<br />
the rules in such a way that the district<br />
magistrate has discretion to<br />
sanction immediate cash relief to the<br />
victims without insisting for filing<br />
of chargesheet.<br />
–The writer is a lawyer with the<br />
Dalit Rights & anti-Communalism<br />
Initiative, HRLN<br />
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DALIT RIGHTS<br />
Two decades of the Act<br />
An experiential review<br />
Dignity of life and equal opportunities to Dalits are distant<br />
dreams even after 20 years of enactment of SC/ST (PoA)<br />
Act. That is why there is an urgent need to review the<br />
legislation to ensure a prompt and fair probe into crimes<br />
against Dalits and render speedy justice to the victims of<br />
caste persecution, notes V Nandagopal<br />
The people of India promised,<br />
"We the people of India<br />
solemnly resolve … to secure to<br />
all its citizens: JUSTICE, social, economic<br />
and political; LIBERTY of<br />
thought, expression, belief, faith and<br />
worship; EQUALITY of status and of<br />
opportunity", through the preamble<br />
of the Constitution. The founding<br />
fathers of the Constitution, realising<br />
the ground situation, engrafted this<br />
promise in Articles 15, 16, 17, 18, 21,<br />
23, 24, 27, 30, 40 to 47, 335, 361 and<br />
362 etc so that the Dalits and Adivasis<br />
could enjoy equal opportunity, equal<br />
status in the society and equal dignity<br />
of their identity. The idea was to<br />
bring the marginalised on parity in<br />
the mainstream society and to do<br />
social, economic and political justice<br />
to them.<br />
In the light of ever increasing<br />
atrocities against the scheduled<br />
castes and scheduled tribes -- less<br />
than one percent conviction rate<br />
under SC/ST (PoA) Act, growing tendency<br />
of disposing the atrocity-related<br />
cases as false cases by police and<br />
concerned officials, and rising trend<br />
of filing counter cases against the victims<br />
and witnesses -- reviewing the<br />
twenty years-old SC/ST (PoA) Act,<br />
1989 has become a necessity especially<br />
in reference to the preamble of this<br />
Act which says, "An Act to prevent<br />
the commission of offences of atrocities<br />
against the members of scheduled<br />
castes and tribes, to provide for<br />
special courts for the trial of such<br />
offences and for the relief and rehabilitation<br />
of the victims of such<br />
offences and for matters connected<br />
therewith or incidental thereto".<br />
Hard realities<br />
1. Increasing atrocities against SC/STs<br />
and at the same time the tendency of<br />
avoiding registration of cases by police<br />
under the Act is equally growing. "….<br />
Even in respect to heinous crimes the<br />
police machinery in many states has<br />
been deliberately avoiding the SC/ST<br />
(PoA) Act, 1989". "…. Police resort to<br />
various machinations to discourage<br />
SC/STs from registering cases -- to<br />
dilute the seriousness of the violence,<br />
to shield the accused persons from<br />
arrest and prosecution and, in some<br />
cases, the police themselves inflict<br />
violence."(NHRC report, 2002)<br />
2. Victims getting frustrated and forced,<br />
either to withdraw the case or to compromise<br />
with the perpetrators. Reasons<br />
behind this are:<br />
(i) Police deliberately not registering the<br />
cases under appropriate sections: Under<br />
In a public interest litigation filed<br />
by Sakshi human right watch,<br />
Andhra Pradesh, police admitted<br />
that:<br />
■ Investigation of 1,873 cases<br />
delayed due to delay in obtaining<br />
caste certificates;<br />
■ Nearly 3,281 cases were not<br />
chargesheeted due to delay in getting<br />
approval, legal opinion and<br />
superior's order;<br />
■ 1,464 cases because of 'more witnesses'<br />
in the case;<br />
■ 2,934 cases due to delay in the<br />
collection of documents & evidence;<br />
■ 1,212 cases due to delay in receipt<br />
of wound certificates, medical certificates<br />
& postmortem report.<br />
the SC/ST (PoA) Act, section 3(1)(x)<br />
was the only common section that<br />
was charged in every atrocity.<br />
Number of judgements reveals that<br />
the words 'intentionally insult' or<br />
'intimidates with intent to humiliate'<br />
and 'in any place within the public<br />
view' mentioned under this section<br />
gives ample opportunity to the<br />
accused to escape punishment. In<br />
other words, hardly gives any scope<br />
to the victim to prove his/her case.<br />
(ii) Enormous delay in filing the<br />
chargesheet: Rule 7(2) of the SC/ST<br />
(PoA) Rules, 1995 says "the investigating<br />
officer so appointed shall<br />
complete the investigation on top priority<br />
within 30 days and submit the<br />
report to the superintendent of police<br />
who in turn will immediately forward<br />
the report to the director general<br />
of police of the state government".<br />
This is the rule to be applied in every<br />
case under the SC/ST (PoA) Act but<br />
the real picture is quite grim. There<br />
are hardly any cases where investigation<br />
was completed within the stipulated<br />
time. None seems to realise the<br />
importance of this rule in view of the<br />
vulnerable conditions of the scheduled<br />
castes and scheduled tribes living<br />
under the caste dominated rural<br />
village structure. The data shows that<br />
delay was extended from days to<br />
months and months to years and for<br />
the concerned authorities this is<br />
nowhere figuring in even in their<br />
normal priority forget the question of<br />
"top priority".<br />
(iii) Accused are invariably released<br />
either on immediate bail or through a<br />
petition in the high court for grant of stay<br />
of all further proceedings including arrest<br />
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DALIT RIGHTS<br />
and to quash the FIR: Because of section<br />
18 of the SC/ST (PoA) Act very<br />
clearly stating, "Nothing in section<br />
438 of the CrPC shall apply in relation<br />
to any case involving the arrest<br />
of any person on an accusation of<br />
having committed an offence under<br />
this Act", the accused in a number of<br />
cases under this Act have found a<br />
blessing in disguise by using section<br />
482 of the CrPC through filing a petition<br />
in the high court, asking grant of<br />
stay of all further proceedings including<br />
arrest and to quash the FIR. None<br />
of the public prosecutors seem to<br />
have opposed this type of a petition,<br />
which is against section 18 and to its<br />
true spirit.<br />
Despite the clear expression<br />
under this section many high courts<br />
are giving relief to the accused under<br />
section 482 of CrPC. The only fear of<br />
getting arrested without any anticipatory<br />
bail which made the culprit<br />
think twice before committing a<br />
crime is slowly taken away with this<br />
process.<br />
(iv) Victims are put to more trouble and<br />
embarrassment because of false and<br />
counter cases filed against them by the<br />
perpetrators: As per the rule 7 of<br />
SC/ST (PoA) Rules, an offence committed<br />
under the Act shall be investigated<br />
by a police officer not below<br />
the rank of deputy superintendent of<br />
police whereas a counter case filed<br />
by a non scheduled caste person<br />
against the victim can be investigated<br />
by a station house officer. Taking this<br />
as an advantage to demoralise the<br />
victims' confidence levels culprits<br />
influence police to take quick action<br />
against victims while the original<br />
case remained ever pending for<br />
investigation.<br />
3. Discouraging trends in criminal justice<br />
administration system:<br />
Section 14 of the Act says "for the<br />
purpose of providing for speedy<br />
trial, the state government shall …<br />
specify for each district a court of session<br />
to be a special court to try<br />
offences under this Act". There are<br />
number of districts where the special<br />
courts are yet to be established and<br />
those areas where such courts are<br />
functioning they have eventually<br />
defeated the very purpose of the<br />
SC/ST (PoA) Act because the designated<br />
courts were not given the<br />
power to directly take cognisance of<br />
cases of atrocities against SCs and<br />
STs. In the present scenario, all cases<br />
have to go through a committal process<br />
by a magistrate before going to<br />
the special court. This has not only<br />
overburdened regular court system<br />
but also slowed down the efficacy<br />
and pace of special courts in disposing<br />
off the atrocity cases. Another<br />
aspect to be noted is that the special<br />
courts are not functioning as ones<br />
dealing exclusively with the SC/ST<br />
(PoA) Act cases but all other cases<br />
too, leading to an enormous delay in<br />
delivering justice.<br />
Notably, the Supreme Court's<br />
judgement in Gangula Ashoka and<br />
Ors vs state of Andhra Pradesh<br />
(2000(2) SCC 504) has made it compulsory<br />
for all atrocity cases to go<br />
through the committal process to be<br />
placed before the special court, thus,<br />
placing unnecessary delays in trial of<br />
atrocity cases. On the contrary, in S<br />
Madava Reddy vs state of Andhra<br />
Pradesh (1996(1) ALT (Crl.) 452(AP),<br />
the Andhra High Court held that as<br />
the special courts are courts of original<br />
jurisdiction, they have the power<br />
to take cognizance of atrocity offence<br />
and try cases without the case first<br />
going through a committal process<br />
with a magistrate<br />
Under the SC/ST (PoA) Act, there<br />
are several offences wherein the<br />
words like "intent", "intention" or "on<br />
the ground", "public view" and "public<br />
place" specified in sections 3(1)(ii),<br />
3(1)(x), 3(1)(xi), 3(2)(i), 3(2)(ii), 3(2)(iii),<br />
3(2)(iv) and 3(2)(v) give ample space<br />
to the accused to escape from the law.<br />
The enforcement officials also resort<br />
to various schemes to support the<br />
accused in different ways.<br />
Even the judiciary is not exempted<br />
from this kind of appreciation of<br />
the above-mentioned words. The<br />
analysis of the judgements pronounced<br />
by the special courts indicates<br />
that 39 percent of the cases were<br />
disposed off on the ground that "the<br />
accused did not abuse by caste name"<br />
while committing the offences<br />
including rape. Eleven percent of the<br />
cases were cleared on the ground<br />
that the offences were "not committed<br />
on the ground of SC/ST". It shows<br />
in more than 50 percent cases that the<br />
accused escape from the law based<br />
on the appreciations of the courts on<br />
the words "intent", "intention", and<br />
"on the ground of". Similar trend can<br />
also be observed in the judgements<br />
pronounced by the high courts.<br />
In Appa Bali Ingley case, the<br />
Supreme Court declared that proof<br />
of motive to commit atrocities on<br />
Dalits is not necessary. The very<br />
mindset and caste-based discrimination<br />
is the ground for inflicting torture<br />
on the downtrodden.<br />
Failed prosecution<br />
The PoA Act under section 15 envisages<br />
the appointment of a public<br />
prosecutor and in some cases a special<br />
public prosecutor as well. But<br />
one finds a serious flaw in the implementation<br />
of the Act with almost<br />
negligible appointment of the SPP to<br />
conduct trials. The public prosecutors<br />
are usually busy in conducting<br />
trials of IPC offences and they seldom<br />
give priority to the trial of the<br />
case filed under the SC/ST (PoA) Act<br />
and PCR Act.<br />
Victims have been facing a lot of<br />
delay or denial of getting compensation,<br />
relief and rehabilitation measures.<br />
The raising awareness among<br />
the scheduled castes and scheduled<br />
Tribes to question the root causes of<br />
the atrocities on one side and the<br />
intolerant behaviour of the dominant<br />
rural upper caste social structure on<br />
the other is increasing the need for<br />
the effective implementation of the<br />
SC/ST (PoA) Act and its Rules in real<br />
spirit and strength. Hence, there is a<br />
need to review and reflect on the<br />
practical achievements and failures<br />
of this Act in last twenty years. And<br />
this exercise should take place at<br />
every level across the country to<br />
strengthen the only Act which provides<br />
the reparation and compensation<br />
to the victims in addition to punishing<br />
the accused and be made more<br />
user friendly.<br />
–The writer is director,<br />
Sakshi Human Rights Watch<br />
66<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DALIT RIGHTS<br />
Across India, the SC/ST<br />
(PoA) Act is operating<br />
more in defiance than in<br />
compliance. The bias of the<br />
judiciary, the apathy of the<br />
public prosecutor, the<br />
vulnerability of the victim<br />
and the corruption in the<br />
entire justice delivery<br />
mechanism at every<br />
stage -- the odds are too<br />
many. A reality check<br />
from Gujarat<br />
Dalit laws: Mere paper tigers?<br />
Despite the legislative will<br />
demonstrated by the enactment<br />
of the Scheduled Caste<br />
and Scheduled Tribe (Prevention of<br />
Atrocities) Act, 1989, the situation of<br />
the members of the SC community<br />
has hardly changed for any good. As<br />
the legendary human rights activist<br />
and former Supreme Court judge<br />
Justice VK Krishna Iyer puts it, all<br />
such 'half hearted legislation has<br />
proved to be impotent and ineffectual<br />
in practice'.<br />
More often than not, rules and<br />
procedures are used not to implement<br />
the Act but to make sure that<br />
the accused go scot free. Non-investigation<br />
of the atrocity-related cases by<br />
a police officer in the rank of the<br />
deputy superintendent of police<br />
leading to acquittal is one such example.<br />
In Gujarat, it is not uncommon<br />
for a judge to ask "ama samadhan<br />
thay evu nathi?" (Is it not possible to<br />
arrive at a compromise?) This comes<br />
from the judge knowing well that the<br />
offences under the SC/ST Act are<br />
non-compoundable.<br />
The issue has two dimensions to<br />
it. First is the crumbling of the total<br />
justice delivery mechanism. Low<br />
rates of conviction are not peculiar to<br />
Dalit rights cases alone. It is an overall<br />
phenomenon. Adjournments leading<br />
to delay in justice are an all-prevailing<br />
phenomena. The second, of<br />
course, is the miserable situation of<br />
the SC and ST community which<br />
makes the impact on them several<br />
times more.<br />
The question that we need to ask<br />
ourselves as Dalit rights activists is,<br />
has the time not come for joining<br />
hands with other people who are<br />
working on the issue of the judicial<br />
reforms or police reforms?<br />
The severe earthquake that hit<br />
Gujarat in 2001 and the subsequent<br />
relief and rehabilitation programme<br />
revealed to the outside world the<br />
deep-seated caste bias in the Gujarati<br />
community, apart from the much<br />
talked about bias against the minority<br />
communities. There were reports<br />
that in some places the relief and<br />
rehabilitation work bypassed both<br />
the Dalits and the Muslims.<br />
Discrimination against the SCs in<br />
Gujarat occurs routinely -- in housing,<br />
in education, and even in death.<br />
Use & abuse of law<br />
SC/ST (POA) Act, 1989<br />
Section 3 of the SC/ST Act establishes<br />
different offences and punishments<br />
that should be carried out for crimes<br />
committed against members of<br />
Scheduled Castes or Scheduled<br />
Tribes. However, it is quite visible<br />
that police in Gujarat lodge the<br />
majority of complaints (FIR) only<br />
under section 3(1)(10) of the SC/ST<br />
Act even though the form of the<br />
crime in each case is different.<br />
Section 4 of the Act clearly establishes<br />
the punishment for government<br />
servants who neglect or willfully<br />
neglect his/her duty. However, it<br />
has been noted that the state ministry<br />
of home has taken such provisions in<br />
a very casual manner. Therefore, they<br />
have failed to ensure the proper<br />
implementation of the concerned section<br />
of the SC/ST Act.<br />
According to section 7 of the Act,<br />
after perpetrators of the offences are<br />
successfully convicted for their<br />
actions against the backward classes,<br />
their moveable and non-moveable<br />
assets are to be seized by the special<br />
court (special court is defined in section<br />
14 of the SC/ST Act,1989).<br />
However, not a single case has been<br />
found over the last decade in which<br />
the assets of the perpetrators have<br />
been seized by the special courts in<br />
Gujarat.<br />
Section 10 of the Act establishes<br />
"the provision of parole". However,<br />
this provision has hardly been<br />
utilised by any law enforcement<br />
agency in Gujarat, resulting in high<br />
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DALIT RIGHTS<br />
rates of violence towards the scheduled<br />
castes within the state. Section<br />
14 calls for the formation of special<br />
courts to adjudicate cases of violations<br />
against communities of scheduled<br />
castes and scheduled tribes but<br />
only 10 out of 26 districts in Gujarat<br />
have established such courts.<br />
Furthermore, the special courts that<br />
have been built are in poor state with<br />
insufficient water and electricity supply<br />
and other such infrastructural<br />
deficiencies. It has also been reported<br />
that in some special courts, there are<br />
no spaces for the victims to sit.<br />
The provisions under sub-section<br />
4(2) of the SC/ST Act, 1989 require the<br />
appraisal or evaluation of the special<br />
public prosecutor. (As per section 15<br />
of the Act, the prosecutor is specially<br />
appointed to adjudicate the legal proceedings.)<br />
It has been found that only<br />
the Ahmedabad district collector has<br />
exercised this appraisal of the SPP,<br />
which occurred as a result of several<br />
reminders given to him. Such gaps<br />
show that the special public prosecutor<br />
has not been keen to perform<br />
his duty to ensure the rights of<br />
scheduled castes and scheduled<br />
tribes victims.<br />
Sub-section 16 establishes a "collective<br />
fine". However, to date this<br />
clause has not been put to use to<br />
penalise any opponents or accused<br />
members of the upper-castes. Such<br />
flaws in the state machinery result in<br />
an increased number of single and<br />
collective acts of atrocity against the<br />
communities of scheduled castes and<br />
scheduled tribes.<br />
SC/ST (POA) Rules, 1995<br />
On March 31, 2008, the central government<br />
amended the SC/ST (PoA)<br />
Rules, 1995. However, the state government<br />
of Gujarat has not paid any<br />
heed to or enforced these rules and<br />
has even gone as far as to violate the<br />
new amendments. The following<br />
instances reveal more about the grim<br />
situation in the state:<br />
Rule 3: The state ministry of home<br />
has announced that 11 out of the 26<br />
districts in Gujarat are atrocity-prone<br />
areas. In a letter from the director<br />
general of police to the state ministry<br />
of home, dated November 25, 2005<br />
(G-2/1997/Atrocity Prone Dist), the<br />
DGP has requested to announce<br />
majority of the districts as atrocityprone<br />
areas. The ministry to date has<br />
More often than<br />
not, rules and<br />
procedures are used<br />
not to implement the<br />
Act but to make sure<br />
that the accused<br />
go scot free<br />
not responded to the letter, which<br />
implies gross negligence on the part<br />
of the state government towards<br />
securing the rights of scheduled<br />
castes in Gujarat.<br />
Rule 4: The law department is supposed<br />
to create a panel of senior<br />
lawyers to look after the penal proceedings<br />
as per rule 4(1) of the SC/ST<br />
Atrocity Rules, 1995. However, there<br />
is no such functioning committee in<br />
any district in Gujarat.<br />
Rule 5: Regarding information<br />
sought on in-charge police officials, it<br />
is worth mentioning that none of the<br />
offices of the district superintendent<br />
of police are willing to provide information<br />
on complaints registered,<br />
cases filed, trials etc. Even after registering<br />
a complaint at the district<br />
headquarters, no action was taken by<br />
the police officials to respond to the<br />
complaint. In Gujarat, the implementation<br />
of sub-rule 3 is completely<br />
missing.<br />
Rule 6: As per rules 1 to 5, each of the<br />
district-level designated officers,<br />
such as the district collector, district<br />
superintendent of police (DSP), subdivisional<br />
magistrate, and executive<br />
magistrate, are required to visit the<br />
places where atrocities against scheduled<br />
castes or scheduled tribes have<br />
taken place. These officers are then<br />
required to send a report to the state<br />
government about the atrocity incident.<br />
However, none of these highranking<br />
officials have ever been<br />
found taking such visits. In the end,<br />
many cases result in judicial delay<br />
and the accused justifying his/her<br />
malfeasance. If the high-ranking officials<br />
actually undertake these visits,<br />
it would help to ensure a pure and<br />
prompt investigation process and<br />
would even increase the self-confidence<br />
of the victims in the probe.<br />
Rule 7: From 2001 to 2006, 5,593 cases<br />
were registered as atrocity offences,<br />
of which 5,370 (96 percent) were<br />
investigated by an officer lower in<br />
rank than the DSP. As per Rule 7(2),<br />
the chargesheet for all filed cases<br />
should be completed and submitted<br />
within 30 days from the day of occurrence<br />
of the crime. However, out of<br />
5,344 total cases, only 3,087 met the<br />
30-day deadline. The remaining 2,259<br />
cases were not investigated and did<br />
not have a filed chargesheet within<br />
30 days.<br />
Rule 8: As per the sub-rule 8(3), there<br />
should be an allied police force that<br />
protects the scheduled castes and<br />
scheduled tribes in sensitive territories.<br />
In this regard, the office of the<br />
DGP of Gujarat has issued a demand<br />
for an approval of appointment of<br />
police staff to protect members of the<br />
Dalit community but the state government<br />
has taken no decision on<br />
this as yet.<br />
As per rule 5 and sub-rule 3, it is<br />
mandatory to register all the verbal<br />
and written petitions and complaints,<br />
and to maintain separate notebooks<br />
for them. Furthermore, if this procedure<br />
is not followed, then rule 5 outlines<br />
appropriate action and steps<br />
that the district superintendent of<br />
police should take to ensure officials<br />
perform in accordance with law.<br />
Sub-Rule 8(9): As of now, 85 complaints<br />
of willful negligence of a state<br />
government servant have been forwarded<br />
by the additional DGP<br />
(SC/ST cell) to the state home department<br />
for punitive action against the<br />
erring officials. However, none of the<br />
complaints have been taken into serious<br />
consideration by the department.<br />
Rule 9: The post of the nodal officer<br />
should have a full-time person rather<br />
than a temporary allocation as additional<br />
charge to some higher-level<br />
officer.<br />
–This report is based on the<br />
collective efforts of Centre for Social<br />
Justice and Navsarjan Trust, Gujarat<br />
68<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
PRISONERS' ABUSE<br />
Condemned Twice<br />
The vulnerabilities that<br />
women generally face in<br />
society are also reflected<br />
in the correctional<br />
institutions. Various forms<br />
of abuse by prison staff<br />
and other inmates have<br />
become a common feature<br />
in the lives of those<br />
incarcerated women<br />
whose basic human rights<br />
stand violated while they<br />
serve a sentence. Prison<br />
health systems are rarely<br />
equipped to deal with<br />
their needs, leaving them<br />
in lurch to survive in the<br />
most deplorable and<br />
hostile conditions.<br />
Leni Chaudhuri and<br />
Reena Mary George<br />
report on the multiple<br />
challenges faced by<br />
women prisoners<br />
Health status of the<br />
marginalised has never been<br />
a topic of mainstream discourse,<br />
particularly about those who<br />
are criminals in the eyes of law.<br />
Women in conflict with law suffer<br />
from the double jeopardy, firstly for<br />
being prisoners and secondly for<br />
being women. Considering the significance<br />
and seriousness of the issue<br />
a study was conducted with women<br />
inmates in central and district prisons<br />
in Maharashtra. The objectives of<br />
the study were to understand the<br />
type and nature of morbidities that<br />
prevailed among women prisoners,<br />
the availability of medical assistance<br />
in the context of those morbidities,<br />
and access to other social determinants<br />
of health such as food, water<br />
and sanitation. The study went on to<br />
further probe whether the individual<br />
prisons comply with the physical<br />
standards mandated by the Prison<br />
Manual. 1<br />
Key findings<br />
From nearly 400 women prisoners<br />
who were selected from the eight<br />
prisons in Maharashtra, around two<br />
percent were less than 18 years of<br />
age. Women within the age group of<br />
18 to 59 years comprised of the<br />
largest majority (85.4 percent).<br />
Around 13 percent of the respondents<br />
were above 60 years of age. In<br />
the age category of less than 18 years,<br />
60 percent of the women were married.<br />
In the age group of 18 to 59<br />
years, 78 percent of women were<br />
married. And among these, 12 percent<br />
were widowed, 0.8 percent were<br />
divorced, 2.1 percent were separated,<br />
1.5 percent were deserted.<br />
Among a total of 390 women<br />
interviewed, astoundingly high proportion<br />
(74.1 percent) reported that<br />
they were suffering from some illness<br />
or the other. The responses<br />
ranged from grave to minor health<br />
problems. Out of those who reported<br />
ill on the day of the survey, an<br />
abysmally low proportion (10 percent)<br />
was examined by the doctor,<br />
almost similar (10.8 percent) number<br />
was not examined by the doctor and<br />
only provided with first aid, about 28<br />
percent of the women were given<br />
medicines from the dispensary by<br />
someone other than a doctor. Only<br />
3.3 percent of the respondents who<br />
were ill on the day of the survey had<br />
the opportunity to be treated by the<br />
doctor and were also given<br />
medicines. A substantial proportion<br />
(27.7 percent) of those who were sick<br />
reported that they did not seek any<br />
treatment.<br />
The reasons for not seeking treatment<br />
provided by the ailing women<br />
detainees ranged from — (i) The doctor<br />
hesitated to see them; (ii) No<br />
relief even after taking medicines;<br />
(iii) Irregular visits by the doctor; and<br />
(iv) The warden and other prison<br />
staff get angry if the inmates complain<br />
about ill health.<br />
More than half (61.5 percent) of<br />
the women responded that there has<br />
been no change in their condition<br />
even after taking treatment and only<br />
25 percent claimed to be feeling better.<br />
Women had serious reservations<br />
about the medicines prescribed to<br />
them. Their major complaint was<br />
that the medicines given by the dispensary<br />
gave no recovery results on<br />
them and also that the same<br />
medicine (a white tablet) is given to<br />
them for all kinds of illness. In fact,<br />
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PRISONERS' ABUSE<br />
this was one of the reasons why<br />
women were reluctant in seeking<br />
treatment from the medical staff at<br />
the prison.<br />
A substantially high proportion<br />
of women prisoners amounting to<br />
73.1 percent said that they have been<br />
ill for the last 15 days and most of<br />
them reported long term illnesses<br />
such as anxiety, tuberculosis, allergy,<br />
arthritis, abdominal pain, dental<br />
problems, growth in the uterus,<br />
urine infection, diabetes etc. Further<br />
enquiries about health conditions of<br />
the women revealed a large proportion<br />
(60 percent) had no access to<br />
consistent treatment in the cells.<br />
The other sentiment represented<br />
was that there is a general lack of<br />
sympathy towards ailing prisoners.<br />
Prison staff at all levels creates some<br />
kind of barrier for prisoners whenever<br />
they try to report their illness or<br />
seek healthcare. The constable’s<br />
responses range from simple denial<br />
to violent abuse. This acts as the first<br />
level of screening and only those<br />
who can circumvent this pressure<br />
reach to the doctor.<br />
The emerging issue was continuous<br />
access to medicines. Most of the<br />
respondents with long-term illnesses<br />
like diabetes, blood pressure, tuberculosis<br />
etc, mentioned that they had<br />
problems in routine monitoring of<br />
their illness and also consistent<br />
access to medicines. Lack of insulin<br />
was a phenomenon uniformly<br />
observed in all prisons.<br />
Reproductive health<br />
The probe on reproductive health ailments<br />
included problems during<br />
menstruation, white discharge and<br />
unavailability of antenatal care<br />
(ANC) and postnatal care (PNC) services.<br />
Around 23 percent of the<br />
women interviewed during the survey<br />
said that they had problems during<br />
menstruation. Fifteen percent of<br />
the prisoners suffered from severe<br />
pain during menstruation while 28<br />
percent reported to be having scanty<br />
bleeding. Around 39 percent said that<br />
they had abdominal and back pain<br />
during menstruation and 13 percent<br />
reported that they had heavy bleeding.<br />
Most of the women complained<br />
that ever since they were lodged in<br />
the prison their regular menstruation<br />
cycle has become erratic. Around 27.7<br />
percent of the women reported that<br />
they had burning sensation while<br />
passing urine, 23.1 percent said that<br />
they had excessive white discharge,<br />
21 percent claimed that they had itching<br />
in genital region, 33.3 percent said<br />
that they had pain in the lower<br />
abdomen, and finally 7.2 percent said<br />
that they had prolapsed uterus.<br />
During the course of the study it<br />
was seen that only 11 women were<br />
pregnant at the time of admission<br />
into the prison and a majority of<br />
them reported that they were not<br />
aware of any proper ANC registration<br />
to be done in their case. Since<br />
most of the respondents were not<br />
clear about the entitlements which<br />
were part of the ANC registration 2 ,<br />
all the 11 women were asked<br />
whether they received any of such<br />
privileges as part of ANC care. Only<br />
seven women responded that they<br />
received iron and folic acid tablets.<br />
The Maharashtra Prison Manual,<br />
1979 lays down a fairly detailed provision<br />
for diet of pregnant women<br />
prisoners. It is stated that one portion<br />
of the diet of a pregnant woman shall<br />
comprise of cereals. Non-vegetarians<br />
shall be served meat, eggs, fish and<br />
vegetarians shall be served milk and<br />
other milk products. However, none<br />
of the pregnant women in the prison<br />
said that their diet comprised of any<br />
cereal, only three claimed that they<br />
were given milk, none of them<br />
reported to be getting meat or fish<br />
and only one woman said that she<br />
was served eggs.<br />
As per the prison rules in India,<br />
no child can have “the prison”<br />
recorded as his or her birthplace. 3 So<br />
this creates enormous pressure on<br />
the otherwise insensitive prison system<br />
to be particular about the place<br />
of delivery. The prison administration<br />
stated that even if a delivery<br />
takes place in the prison also, they<br />
record the name of the area in which<br />
the prison is located and not<br />
the prison itself as the child’s place<br />
of birth.<br />
It was observed that education,<br />
recreation and nutritional requirements<br />
of the children of the women<br />
inmates were hardly met inside the<br />
prison walls. Though staying with<br />
the mother provided them with emotional<br />
security, nonetheless it also<br />
hampered their growth in many<br />
ways. The mothers also said that<br />
their children are acquiring negative<br />
qualities like abusive and violent<br />
behaviour from other prisoners.<br />
Some of the mothers mentioned that<br />
their children are often victims of<br />
physical and emotional abuse by fellow<br />
prisoners or prison staff and the<br />
fact that they could not save their<br />
children from this caused a lot of<br />
emotional trauma to them. Another<br />
fear that gripped them was the fact<br />
that their children may not be able to<br />
cope and adjust with the outside<br />
world ones they are released from<br />
the prison.<br />
The hostile environment in the<br />
prisons was coupled with minimum<br />
dietary provisions. Majority of the<br />
prisons (6 out of 8) had no special<br />
dietary provision for children. None<br />
of the children were given extra milk,<br />
daliya, khichdi etc for nourishment.<br />
They received meals two times in a<br />
day and some breakfast in the morning.<br />
There was also no provision for<br />
snacks, fruits or milk and milk products<br />
for the young ones. Mothers had<br />
to either spend their meagre earnings<br />
in buying snacks from the prison<br />
canteen or manage with whatever<br />
was available. It was observed that<br />
most of the children survived on glucose<br />
biscuits.<br />
In terms of education, only those<br />
prisons which had a substantial<br />
number of children had balwadi<br />
facilities. Since this was not a priority<br />
for the prison administration the balwadis<br />
were definitely not run in the<br />
most efficient ways. Dedicated space,<br />
teachers and teaching aid everything<br />
seemed to be inadequate as per the<br />
70<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
PRISONERS' ABUSE<br />
requirement. Rather than performing<br />
his/her duty of teaching the children,<br />
the balwadi teacher was found to be<br />
involved in prison administration<br />
work like payment of wages, record<br />
maintenance of the same, maintaining<br />
stock details of medicine etc.<br />
Healthcare needs of children were<br />
also not a priority. Among all kinds<br />
of treatment provided, only administration<br />
of polio drops were regularly<br />
carried out. There was no provision<br />
of routine health check up and the<br />
general practitioner treated the children<br />
as and when required. Prisons<br />
with large number of children had a<br />
paediatrician visiting them on special<br />
days.<br />
Crumbling infrastructure<br />
Studies conducted in both Indian<br />
and Western context explicitly bring<br />
out the fact that prisoners live in<br />
inhuman conditions, the prison barracks<br />
are crammed with inmates<br />
than their official capacity resulting<br />
in over crowdedness and undue<br />
pressure on the otherwise miserable<br />
infrastructure. In India the authorised<br />
capacity of the prisons is<br />
2,77,304 while the inmate population<br />
as on December 31, 2007 was<br />
3,76,396. 4<br />
The prison manual mandates that<br />
each prisoner shall be provided with<br />
one mug, one plate and one bowl as<br />
utensils for personal use by the jail<br />
authorities at the time of admission.<br />
During the survey all the respondents<br />
were asked whether they have<br />
been given these utensils or not and<br />
the responses were hard to believe.<br />
The inmates are supposed to use the<br />
mugs to collect milk and dal (lentils)<br />
served in the prison. The other use of<br />
the same mug is in the bathroom and<br />
toilet. Around six percent of the<br />
respondents mentioned that they<br />
were not provided with mugs at all.<br />
When they were asked whether they<br />
have separate containers for use in<br />
baths and toilets, surprisingly, 20<br />
percent of them said that they did<br />
not have a separate container. On<br />
more digging, the women inmates<br />
revealed they are asked to either use<br />
the same mug in toilets with which<br />
they collect dal and milk or the bottles<br />
used for collecting drinking<br />
water. In fact, some of the respondents<br />
said that at times if their bath<br />
time clashes with that of bhatta (food<br />
distribution), then they had to actually<br />
make a crucial decision whether to<br />
have bath or collect food. And most<br />
of the time they had to use the mug<br />
for collecting food. Some of them cut<br />
the plastic bottle into two halves to<br />
use the lower half of the bottle to<br />
carry water to the toilet. Hardly anywhere<br />
the bathrooms and toilets had<br />
mugs and buckets kept there. Many<br />
women said that they look forward<br />
to their court hearing day for more<br />
than one reason, one of them being<br />
the opportunity to get a mineral<br />
water bottle, which they can use in<br />
the prison.<br />
Poor sanitation facilities<br />
The Maharashtra Prisons (Prison<br />
Buildings and Sanitary<br />
Arrangements) Rules, 1964, section<br />
(I)(35) states, “drinking water must<br />
be ‘pure and wholesome’ and safe for<br />
human consumption and shall be<br />
supplied in sleeping wards and all<br />
other places of detention. Drinking<br />
water in prisons is stored either in<br />
tanks, plastic bottles, or earthen pots.<br />
In most of the prisons, there is a common<br />
tap. Almost 60 percent of<br />
women used this common tap to<br />
store water for drinking purposes.<br />
However, there was another 32.8 percent<br />
who filled their drinking water<br />
from taps inside the toilets.<br />
Nearly 34 percent of the women<br />
interviewed during the survey said<br />
that they did not have enough water<br />
for bathing and cleaning. Due to<br />
security reasons prisons could not<br />
have fully closed bathrooms. So they<br />
were mandated to have bathrooms<br />
with the door covering half the wall,<br />
but around 54 percent of the respondents<br />
mentioned that they had no<br />
facilities for a closed bathroom (even<br />
with partially covered rooms) and<br />
had to have their baths in open either<br />
under common taps or in a tank constructed<br />
for the purposes of storing<br />
water. The women had to carry out<br />
all their washing and cleaning activities<br />
inside those tanks. Interestingly,<br />
lack of bathing facilities were one of<br />
the major causes of fights among the<br />
prisoners.<br />
According to the Maharashtra<br />
prison manual, “one latrine accommodation<br />
with sufficiently high partition<br />
for privacy and water for cleaning<br />
shall be provided for each group<br />
of six prisoners, and shall be cleaned<br />
at least twice a day.” 5 Out of eight<br />
prisons, only one used all the toilets<br />
that were constructed for the women,<br />
however, the remaining seven prisons<br />
just used two toilets irrespective<br />
of the high strength of women and<br />
rest of the toilets were either locked<br />
or used as store rooms. Except for<br />
one prison, none of the others had<br />
taps inside the toilet. The women had<br />
to carry water or use their drinking<br />
vessel to use in the toilets. To add to<br />
their woes, the women prisoners<br />
were not provided with any soap or<br />
detergent powder for their daily<br />
washing and, if so at times, the<br />
amount was very insufficient.<br />
Denial of personal hygiene supplies<br />
to women in prisons is another<br />
disturbing issue. Around 20 percent of<br />
them reported that they were not given<br />
sanitary napkins. The others who were<br />
given said that the napkins couldn’t be<br />
used as they were of very poor quality<br />
and better left unused. Thus, the<br />
inmates are left with no option but to<br />
use their own cotton saris!<br />
As per the Maharashtra prison<br />
manual, every convicted women<br />
prisoner should be provided with<br />
two saris, two petticoats and a towel.<br />
However, it was found that 12.8 percent<br />
did not have two saris, 33.6 did<br />
not have two petticoats and 51 percent<br />
did not have any towel. Only<br />
66.4 percent of the women could<br />
wash their clothes daily and the rest<br />
could not do so because of lack of an<br />
extra pair to change. Around 45.4<br />
percent of the convicts were not provided<br />
with undergarments. Women<br />
www.combatlaw.org 71
PRISONERS' ABUSE<br />
Though food and nutrition-related issues are crucial<br />
to the well being of any society, in the prison set up<br />
this attracts the least attention<br />
mentioned that often they used the<br />
undergarments left behind by those<br />
who were released from the jail. The<br />
manual states that all the women<br />
prisoners are to be supplied with bed<br />
sheet, bedspread, pillow and woollen<br />
clothes (during winter). But the real<br />
picture is altogether different with<br />
many women reporting they had no<br />
recourse to any bed sheet or bedspread<br />
and 58.2 percent did not have<br />
a pillow. It was also recorded that 8.5<br />
percent women were not provided<br />
warm clothes during winter.<br />
Though food and nutrition-related<br />
issues are crucial to the well being<br />
of any society, in the prison set up<br />
this attracts the least attention. The<br />
probe revolved around the quality<br />
and quantity of food and around 32<br />
percent of the women said that the<br />
quantity of food served was not<br />
enough. Below are the reasons<br />
voiced by some of the respondents<br />
on food served in prisons:<br />
(i) The food is so bad that I cannot<br />
even eat whatever amount is given to<br />
me;<br />
(ii) You know how prison food<br />
is………you cannot complain about<br />
it;<br />
(iii) We have been punished and<br />
starving is a part of the punishment;<br />
(iv) I am ok with the quantity but<br />
my growing daughter needs little<br />
more so often I have to share my food<br />
with her;<br />
(v) The prison has fixed quantities to<br />
be served and we are not allowed to<br />
ask for more;<br />
(vi) They serve a lot but it tastes so<br />
bad that no one asks for more than<br />
one helping.<br />
(vii) I am fortunate to be here, who<br />
would serve me free food every<br />
day…so whatever I get is all right<br />
with me;<br />
It was observed that responses of<br />
inmates were to a large extent influenced<br />
by their background. The poor,<br />
single or deserted women and those<br />
from rural background were found<br />
to be generally submissive and did<br />
not complain about any of the miserable<br />
conditions in the prison, including<br />
food. Some of them had seen so<br />
abject poverty that they appeared to<br />
be contented with whatever they got<br />
in the confinement. The other issue<br />
was that the prisoners had actually<br />
internalised the fact that as convicts<br />
they deserved to be served inferior<br />
quality of food and they were complacent<br />
about it.<br />
It is worth mentioning here that<br />
of all the respondents 43 percent had<br />
fallen sick after consuming the food<br />
served in the prisons and around 26<br />
percent of them had fallen sick several<br />
times.<br />
Emerging concerns<br />
The study throws up major concerns<br />
about violations of healthcare and<br />
human rights conditions of women<br />
prisoners. On one hand there are<br />
issues related to biases and discrimination<br />
and on the other are issues<br />
related to lack of access to basic<br />
amenities for survival. Based on the<br />
findings of the study following<br />
issues need to be further dwelt upon:<br />
(1) More research has to be done with<br />
people living in institutions, particularly<br />
prisons, in order to gather more<br />
evidence about their living conditions.<br />
(2) Prison officials need to be sensitised<br />
and informed on how to be able<br />
to address women prisoners with<br />
dignity and protection of their<br />
human rights.<br />
(3) Better coordination between the<br />
department of health and the prisons<br />
is essential for better delivery of<br />
health facilities.<br />
(4) The budget earmarked for healthcare<br />
in prisons should be substantially<br />
increased and the chief medical<br />
officer should have the authority for<br />
sanctioning the same. Requisition<br />
process for medicines should be simplified<br />
and need based.<br />
(5) Each prison should have a committee<br />
comprising of at least one<br />
inmate representative to monitor the<br />
functioning of the prison system.<br />
(6) Each prison should be mandated<br />
to submit a report to the home<br />
department about the status of compliance<br />
of standards proposed in the<br />
prison manual.<br />
Footnotes:<br />
1. Maharashtra Prison Manual, 1979<br />
2. Government Resolution, Home<br />
Department No. RJM 1063 (XLVII), XVI,<br />
Dated 25th February 1971, Sect. 7 (ii)<br />
3. Government Resolution, Home<br />
Department No. RJM 1063 (XLVII), XVI,<br />
Dated 25 th February 1971, Sect. 8<br />
4. National Crime Records Bureau a ccessed<br />
from http://ncrb.nic.in/PSI2007/<br />
prison2007.htm on 26th October 2009<br />
5. Maharashtra Prisons (Prison Buildings and<br />
Sanitary Arrangements) Rules 1964, Sect. I.<br />
25 & 26<br />
– The writers are activist researchers<br />
with special interest in health and<br />
human rights issues. The study was<br />
conducted by them during their tenure<br />
at CEHAT, Mumbai<br />
72<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
ADIVASIS<br />
Jharkhand's dispensable tribe<br />
On the morning of December 6,<br />
2008, Lukihram Tudu, a<br />
farmer from Daldali village in<br />
the Dumka district of Jharkhand,<br />
woke up before daylight to leave the<br />
house, not to bake his mud brick hut,<br />
but to meet thousands of other<br />
Adivasis whose fate, like his, had<br />
been sold to Calcutta Electric Supply<br />
Corporation Ltd (CESC).<br />
A few years earlier, CESC had<br />
contracted with the government of<br />
Jharkhand to commence a multipronged<br />
power plant, dam, and coal<br />
mining project that would displace<br />
thousands of Adivasi villagers,<br />
including Lukihram and his family,<br />
from their lands. Although Indian<br />
law requires the government to first<br />
consult the Gram Sabha of villages to<br />
be affected by such projects, legal<br />
obligations were flippantly tossed<br />
aside for a plan that would be incredibly<br />
profitable to a small group of<br />
local government and CESC officials<br />
at the expense of thousands of<br />
indigenous villagers.<br />
Lukihram joined his fellow<br />
Adivasi villagers in a field nestled<br />
between Amgachi and Pokharia villages.<br />
After months of pleas to CESC<br />
and the government to cease the project,<br />
the villagers had finally decided<br />
to make their voices heard in the<br />
form of a non-violent protest march.<br />
"We do not want to lose our land.<br />
Electricity will not ensure food to our<br />
children," Lukihram and other adivasis<br />
chanted as they marched to the<br />
small town of Kathikund. As the<br />
peaceful demonstration progressed,<br />
however, the atmosphere charged<br />
with excitement that had brought<br />
together the villagers was quickly<br />
replaced by fear. A wall of police<br />
force brandishing sticks and guns<br />
blocked the road ahead.<br />
As the protesters came closer,<br />
without any warning or provocation,<br />
the police raised their sticks and<br />
attacked the unarmed Adivasi<br />
women and children, who were leading<br />
the march. The tribals tried to<br />
shelter themselves with the banners<br />
they were carrying, but police continued<br />
to strike them. Mothers covered<br />
up to protect their children, but<br />
babies as young as 16 months were<br />
severely hit in the attack. "We were<br />
shielding our babies so that they<br />
The government of<br />
Jharkhand has<br />
approved an energy<br />
project that will<br />
displace tens of<br />
thousands of Adivasis<br />
in Dumka district.<br />
Those who have dared<br />
to speak out against the<br />
project have been<br />
arbitrarily detained,<br />
tortured, and even<br />
killed. The government<br />
must cease its<br />
repression of the tribal<br />
activists and terminate<br />
the catastrophic project<br />
immediately, writes<br />
Thomas Becker<br />
www.combatlaw.org 73
ADIVASIS<br />
would not get hurt," recalled Vineeta<br />
Baag, a bleeding mother from<br />
Pokharia. "They still kept hitting us."<br />
The women at the forefront of the<br />
march scattered to all sides as police<br />
beat them and yelled racial and gender<br />
expletives. Protesters pleaded<br />
with police that they "don't mean any<br />
harm…. This is a peaceful protest.<br />
We don't want to fight" but the cops<br />
responded with intensified violence,<br />
raising their guns and firing shots at<br />
the crowd. As police fired at villagers,<br />
witnesses saw some officials<br />
setting a police vehicle ablaze. It is<br />
not clear why police set fire to their<br />
own vehicle but some believe that the<br />
cops hoped to blame the arson on the<br />
protesters to divert attention from<br />
the excessive violence unleashed by<br />
the security forces. Others speculate<br />
police burnt the vehicle to create a<br />
diversion while they brought in more<br />
force and paramilitary reinforcements,<br />
who set up war positions<br />
down the road.<br />
In the face of that violent attack,<br />
many undeterred villagers decided to<br />
continue forward, past the burning<br />
bus, to their destination. As the<br />
demonstrators reached the village of<br />
Tilgani, police and paramilitary forces<br />
again opened fire on them, this time<br />
with more intensity. "It was a rainfall<br />
of fire," one villager lamented.<br />
Protesters tried to seek shelter,<br />
but to no avail. Police shot a 21-yearold<br />
youth as he and his family tried<br />
to evade the bullets. All those who<br />
came to help the man were also fired<br />
at. As one witness stated, "They were<br />
targeting people as they helped the<br />
youth."<br />
Police violence proceeded for<br />
hours in which even Lukihram bled<br />
to death. Security forces shot dozens<br />
of villagers, killing two. To make<br />
matters worse, many of the injured<br />
did not receive critical medical attention<br />
and were allegedly arrested, tortured,<br />
or killed by police.<br />
The project<br />
To understand the protest and the<br />
subsequent state violence that took<br />
place that day, it is necessary to<br />
examine the economic and racial<br />
context of the issue in Jharkhand as<br />
well as the calamitous implications of<br />
the CESC project.<br />
Jharkhand is a land of paradox.<br />
On the one hand, the state is incredibly<br />
rich with natural reserves, boasting<br />
40 percent of India's mineral<br />
wealth, the highest concentration in<br />
the country. On the other hand, the<br />
state is home to some of the world's<br />
most destitute, dispossessed people,<br />
particularly Jharkhand's indigenous<br />
population.<br />
The state's vast natural wealth has<br />
prompted various national and<br />
multinational corporations to sign<br />
memoranda of understanding<br />
(MoUs) with the state government to<br />
extract the state's resources for profit.<br />
In September 2005, CESC, a subsidiary<br />
of RPG, signed an MoU with<br />
the Jharkhand government to commence<br />
a multi-pronged energy project<br />
in the Kathikund region of the<br />
Dumka district.<br />
The CESC plan entails the construction<br />
of a 1,000-megawatt thermal<br />
power plant, the extraction of<br />
coal from local mines, and the development<br />
of a dam. Of the electricity<br />
produced from the project, only 25<br />
percent will be set aside for the government<br />
of Jharkhand to purchase.<br />
The rest would be sold to other<br />
states. Thus, the majority of the<br />
power generated from the resources<br />
in the state will not reach its own<br />
statehood.<br />
The implications<br />
The ground reality shows that the<br />
CESC plan to produce electricity<br />
from Jharkhand's resources will have<br />
catastrophic effects on the region's<br />
indigenous population, and it must<br />
be ceased immediately. First, if the<br />
plan comes to fruition, thousands of<br />
villagers will lose the traditional<br />
lands they have inhabited for centuries.<br />
The exact number of villagers<br />
to be displaced is not yet clear, primarily<br />
because CESC has refused to<br />
provide necessary documents detailing<br />
the project. NGOs closely following<br />
the plan, however, estimate that<br />
30,000 villagers will be displaced and<br />
54 villages decimated.<br />
Most of the Adivasis affected by<br />
the project will directly lose their<br />
homes. Those "lucky" villagers<br />
whose houses are not submerged<br />
will nonetheless be forced to abandon<br />
their cultivated land, the single<br />
source of livelihood for them.<br />
According to CESC blueprints,<br />
roughly 1,000 acres of villagers' farming<br />
lands and coalfields will be<br />
appropriated or inundated for the<br />
power plant project.<br />
In Amgachi village where farming<br />
is the sole source of income for<br />
the populace, a villager repined<br />
about the loss of entire village's farming<br />
lands: "Because it is our only<br />
source of income, we will be painfully<br />
affected…The crops, the rice that is<br />
our food, our livelihood, will be<br />
destroyed." A woman from<br />
Domanpur echoed the similar discontent<br />
as she explained, "The coal<br />
fields are our only source of income.<br />
If they are taken away, we will have<br />
nothing."<br />
Divesting Adivasis of their lands<br />
is not the sole extent of the injustice<br />
perpetrated against the villagers.<br />
Forced ejection will effectively exterminate<br />
their vibrant Santhali culture<br />
that has enriched the lands of the<br />
Dumka belt for centuries. The traditionally<br />
tight-knit, communal structure<br />
that is characteristic of Dumka's<br />
"original inhabitants" would be shattered<br />
when villagers are forced to<br />
travel to other regions to find work.<br />
The small number of villagers that<br />
are permitted to stay on their lands<br />
will also lose their traditional occupation<br />
as labour imported from other<br />
regions, particularly Kolkata, bring<br />
not only their customs, but also ancillary<br />
problems of increased environmental<br />
degradation, health issues,<br />
and drug and alcohol abuse.<br />
Besides the moral and practical<br />
reasons that the CESC plan should be<br />
74<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
ADIVASIS<br />
brought to a halt, legal norms protecting<br />
the Adivasi population in<br />
Dumka require the plan to be terminated.<br />
Indian law obligates the government<br />
to consult indigenous governing<br />
bodies before confiscating<br />
Adivasi land. The provisions of the<br />
Panchayat (extension to scheduled<br />
areas) Act states, "The Gram Sabha or<br />
the panchayats at the appropriate<br />
level shall be consulted before making<br />
the acquisition of land in the<br />
scheduled areas." Likewise, the<br />
Santhal Parganas Tenancy Act<br />
requires disputes over Adivasi lands<br />
to be resolved by one of the region's<br />
traditional governance systems, such<br />
as Manjhi, Mode Manjhi, or Manjhi<br />
Pargainait.<br />
Various international instruments<br />
provide similar protections to the<br />
Adivasis in the Dumka district. The<br />
Declaration on the Rights of<br />
Indigenous Peoples, to which India is<br />
a signatory, states, "Indigenous peoples<br />
shall not be forcibly removed<br />
from their lands or territories. No<br />
relocation shall take place without the<br />
free, prior and informed consent of<br />
the indigenous peoples concerned."<br />
Unfortunately, CESC and the<br />
local government refused to consult<br />
indigenous governing bodies and<br />
failed to obtain the consent of any of<br />
the natives threatened by displacement.<br />
The company and government<br />
have nevertheless moved forward<br />
with the project, completely disregarding<br />
their domestic and international<br />
legal obligations.<br />
The pattern<br />
The failure of CESC and the local<br />
government to obtain the consent of<br />
the Adivasis in the Dumka district<br />
was not mere oversight. Likewise,<br />
the police violence on December 6,<br />
2008 was not a situation that simply<br />
"got out of hand". These incidents fit<br />
into a larger scheme of persecution<br />
and coercion led by the local government<br />
and CESC against the poor villagers<br />
who have resisted the unlawful<br />
seizure of their lands.<br />
When it became clear that<br />
Adivasis would not submit to the<br />
displacement plan, the company and<br />
government focused their initial<br />
efforts on pressurising village leaders.<br />
In late 2007, the local government<br />
brought a case against and<br />
eventually fired the village leaders of<br />
Amgachi and Pokharia for their nonviolent<br />
action of entering a local government<br />
office to deliver a memorandum<br />
stating that their villages did<br />
not consent to the CESC plan.<br />
Knowing that the charges were<br />
bogus, representatives from the government<br />
offered to reinstate the leaders<br />
if they convinced their communities<br />
to submit to the project. When<br />
that bribe did not work, government<br />
and CESC officials attempted to<br />
induce spouse of Amgachi's leader<br />
with an array of gifts and money,<br />
including a new home and Rs two<br />
million. In each case, the villagers<br />
rejected the bribes.<br />
Since coercion of village leaders<br />
did not work, the company and government<br />
shifted their focus to the<br />
communities itself. The government's<br />
early tactic was to brand<br />
Adivasi farmers in the region as<br />
Naxalites. Local police forces even<br />
arrested some of the more vocal<br />
activists under such pretences. While<br />
the Naxalites do operate in many<br />
parts of Jharkhand, there is no evidence<br />
that the villagers affected by<br />
the CESC plan are involved in<br />
Naxalism in any way. Such claims are<br />
made merely to discredit the indigenous<br />
farmers who do not want their<br />
land unjustly appropriated.<br />
In addition to discrediting villagers,<br />
the power giant and the local<br />
government have attempted to trick<br />
Adivasis into giving "support" for the<br />
plant. In spring of 2008, CESC and the<br />
local government convinced two villagers<br />
to collect from their fellowmen<br />
in Amgachi and Phokharia signatures<br />
on blank pieces of paper. While the<br />
pretext for these signatures was to<br />
hold elections, the blank pages were<br />
to be used by the local government to<br />
claim that villagers had given written<br />
consent to the project.<br />
CESC and the government<br />
repeated this ruse a few months later<br />
when they set up a kiosk and distributed<br />
free rice to Adivasis in the<br />
Dumka district. Officials at the kiosk<br />
made villagers who accepted the rice<br />
sign blank pieces of paper, which the<br />
company and government later were<br />
to use to claim that the villagers' signatures<br />
represented consent to the<br />
plan.<br />
Since defamation and deception<br />
did not sway the villagers, the local<br />
government has increased its pressure<br />
by arbitrarily arresting the tribal<br />
activists and abusing them. In some<br />
cases, the abuse has come in the form<br />
of denying proper medical attention.<br />
For instance, police denied a villager<br />
proper hospitalisation for months<br />
until the bullet lodged in his eye during<br />
the Kathikund protest became<br />
irremovable. In other forged cases,<br />
police forces have tortured detainees<br />
in the name of false charges levied<br />
against them.<br />
Conclusion<br />
With 70 percent of the population living<br />
in poverty (roughly 2.5 the<br />
national rate), 87 percent without<br />
access to electricity, 60 percent without<br />
access to roads, and the second<br />
highest illiteracy rate in the country,<br />
Jharkhand's indigenous areas could<br />
benefit from responsible development.<br />
The CESC plan, however, is<br />
not a project to aid the state's most<br />
marginalised population. Ultimately,<br />
tens of thousands of villagers will<br />
lose their traditional lands and occupation<br />
so that a small number of<br />
politicians and business elites can<br />
make a profit.<br />
–The writer is a Henigson Human<br />
Rights Fellow at Harvard <strong>Law</strong><br />
School. He currently lives in Sucre,<br />
Bolivia, where he is actively involved<br />
in legal actions against the former<br />
President of Bolivia for his alleged<br />
role in the massacre of indigenous<br />
protestors in 2003<br />
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TRIBAL RIGHTS<br />
In the hilly area of eastern<br />
Bangladesh known as the<br />
Chittagong Hill Tracts (CHT)<br />
resides an ancient tribe of Chakmas<br />
with their own unique historical traditions,<br />
culture, language and religion.<br />
Their origin and history is<br />
veiled in mystery with very little contextual<br />
evidence in existence. The relatively<br />
few scholars who have taken<br />
interest in the tribe differ in their<br />
views, while some believe they are<br />
descendents of one of the princely<br />
kingdoms in Champaknagar in<br />
northern part of India, others stipulate<br />
they migrated from central<br />
Myanmar and Arakan. Shrouded in<br />
mystery or not, what is clear is that<br />
the Chakmas have been subjected to<br />
many transitions following colonial<br />
presence, in which they have had little<br />
or no say at all. Currently residing<br />
in the Chittagong hills as well as in<br />
India, the Chakmas are a suppressed<br />
lot. In India they are denied citizenship<br />
and access to fundamental<br />
rights notwithstanding their presence<br />
and exertion of influence in the<br />
country for generations. But as often<br />
seen in history, inhabiting lands for<br />
generations is not always a precondition<br />
for exercise of the rights. The<br />
case of the Chakmas is no different<br />
— it is the struggle of an ancient tribe<br />
in a modern world fighting for their<br />
basic human rights and preservation<br />
of culture. And being the largest of<br />
the 14 major tribes residing in<br />
the CHT, the fate of the Chakmas is<br />
the fate of the indigenous people<br />
altogether.<br />
The lost world<br />
of the Chakmas<br />
Trapped in a time warp is<br />
a tribe that has otherwise<br />
traversed through time<br />
and history. The ancient<br />
tribe of Chakmas from the<br />
rugged hill terrains of<br />
Chittagong Hill Tracts of<br />
Bangladesh has been the<br />
worst victim of a colonial<br />
past, partition of the<br />
subcontinent, creation of<br />
Bangladesh and now<br />
regional politics of India's<br />
north east. This ancient<br />
clan today desperately<br />
needs to be uplifted from<br />
the depths it has been<br />
spurned into, writes<br />
Kenn Larsen<br />
Colonial past<br />
The path leading to the current circumstances<br />
surrounding the<br />
Chakmas is paved by a series of historic<br />
events beginning with their<br />
early contact with the British through<br />
the East India Company in 1760.<br />
After their arrival in the region, the<br />
East India Company established control<br />
over the province of Bengal, ceding<br />
the three districts of Burdwan,<br />
Midnapore and Chittagong to British<br />
authority. Consequently, the<br />
Chakmas were forced to pay an<br />
annual contribution in cotton for<br />
which they were allowed to trade in<br />
the plain. The Chakma chief became<br />
responsible for tax collection and<br />
developed into a colonial personage<br />
with some of the trimmings of indirect<br />
rule. However, disillusionment<br />
of being subject to colonial rule soon<br />
turned to restlessness, and the then<br />
chief of the Chakma tribe, Ronu<br />
Khan, formally declared war against<br />
the British in 1877. The war ended a<br />
decade later following an economic<br />
blockade that forced the Chakmas to<br />
negotiate a settlement. The new<br />
Chakma chief accepted British<br />
suzerainty and agreed to keep the<br />
peace in return for autonomous rule<br />
and restrictions on the immigration<br />
of non-indigenous ethnic communities<br />
in the region. The administrative<br />
system was formalised in 1900 by the<br />
introduction of the Chittagong Hill<br />
Tracts Regulation and 35 years later<br />
reaffirmed with the Government of<br />
India Act. Thus the region was designated<br />
as a “totally excluded area”<br />
and its inhabitants given the protection<br />
of specific legal provisions.<br />
Political divide<br />
The year 1947 saw the complete erosion<br />
of this administrative system<br />
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TRIBAL RIGHTS<br />
with the British leaving India and the<br />
following Partition of the land into<br />
two separate states — India and<br />
Pakistan — on the basis of religion.<br />
Under the terms of Partition agreement,<br />
CHT was originally to be<br />
placed under India, but instead the<br />
residing tribes found themselves surrounded<br />
by the borders of Pakistan.<br />
The special status of the region was<br />
initially acknowledged in the country’s<br />
first constitution, but revoked in<br />
1964 when the Pakistani government<br />
suddenly refused to provide any special<br />
rights or constitutional safeguards.<br />
This led to an influx of<br />
Bengali settlers into the area, which<br />
had severely changed the demographic<br />
composition of the region.<br />
Essentially, the Chakmas were given<br />
the choice of either moving out of the<br />
region or abandoning their way of<br />
life and merge with Bengali nationalism.<br />
During this period, the building<br />
of a long planned hydroelectric dam<br />
was also set in motion in the<br />
Chittagong district. The project was<br />
completed in 1960 and resulted in the<br />
creation of a large artificial lake,<br />
whereby approximately 40 percent of<br />
the tribal land was submerged. The<br />
lack of cultivated land forced around<br />
100,000 tribals, most of them<br />
Chakmas, to resettle in surrounding<br />
areas and some crossed the border to<br />
Burma and the present day state of<br />
Arunachal Pradesh. There were<br />
minor compensations given to the<br />
displaced but many did not receive<br />
anything at all. Given that the<br />
Chakmas and the residual tribes in<br />
the area were overwhelmingly<br />
Buddhist at the time of Partition,<br />
they felt stronger affiliations with the<br />
Hindu people of India than the<br />
Muslim dominated Pakistan.<br />
Together with the revoking of the<br />
special status of the CHT and the<br />
construction of the hydroelectric<br />
dam, a fear of being driven from<br />
their land and losing their cultural<br />
identity began to form shape.<br />
Fight for rights<br />
In due course, east Pakistan receded<br />
and became Bangladesh in 1971,<br />
thereby redirecting the borders and<br />
changing the conditions of the people<br />
in the CHT once again.<br />
Immediately after independence, the<br />
Chakmas opted for the retention of<br />
the CHT Regulation 1900, but the<br />
claims were ultimately ignored. This<br />
led to the formation of a regional<br />
political party in 1972, Parbatya<br />
Chattagram Jana Samhati Samity<br />
(PCJSS) where the Chakmas and<br />
other CHT tribes joined hands to<br />
make their demands heard.<br />
However, the continued immigration<br />
of Bengalis into the area and the further<br />
ousting of the indigenous people<br />
eventually proved too powerful for<br />
diplomatic reasoning, and an armed<br />
conflict between the military wing of<br />
PCJSS — Shanti Bahini (SB) — and<br />
the Bangladeshi armed forces ignited.<br />
The CHT consequently turned<br />
into a militarised zone and remained<br />
so for the following two decades,<br />
where an outnumbered SB fought for<br />
the existence of their people against<br />
an enemy large in numbers and military<br />
might. Throughout the war,<br />
there were reports on numerous violations<br />
of human rights against the<br />
indigenous people, which were confirmed<br />
by various national and international<br />
media and human rights<br />
organisations. These included forced<br />
expulsion of the indigenous people<br />
from their lands, torture, rape and<br />
even massacres. At least 13 major<br />
genocidal attacks took place in the<br />
1980s and the early 1990s and no<br />
attempts had subsequently been<br />
made to persecute the assailants.<br />
Although both sides were involved<br />
in military operations against civilians,<br />
the Bangladesh army conducted<br />
organised and systematic attacks on<br />
the indigenous population with a<br />
conscious disregard to civilian or<br />
military status and proof of<br />
affiliations with the SB. In June 1986,<br />
the Far Eastern Economic Review<br />
reported:<br />
“…a reorganised Shanti Bahini force<br />
carried out its biggest coordinated attack<br />
on April 29 as it simultaneously raided<br />
several Bangladeshi army camps and the<br />
outposts of paramilitary Bangladesh<br />
Rifles and followed it up with swoops on<br />
new settlements of immigrant Bengali<br />
Muslims. In turn, the Muslim settlers<br />
and government forces carried out<br />
reprisals on tribal villages forcing the<br />
natives to flee to India.”<br />
The very next day of the attack by<br />
the Shanti Bahini, Bangladesh armed<br />
forces raided six villages in the district<br />
of Matiranga, two villages in<br />
Khagrachari and 24 villages in<br />
Panchari. After ransacking the village<br />
houses and desecrating and<br />
destroying Buddhist temples, the<br />
security forces began raping the<br />
women and torturing and murdering<br />
the villagers with no regards to age<br />
or gender. The ones who escaped the<br />
bloodbath either sought refuge in the<br />
forested surrounding hilly areas or<br />
headed towards the borders of India<br />
and Burma. However, undertaking<br />
such a journey was particularly risky<br />
as the Bangladesh military retained a<br />
significant presence in the CHT and<br />
the borders were heavily guarded by<br />
the country’s paramilitary border<br />
guards, the Bangladesh Rifles (BDR).<br />
On May 18, 1986, a group of 200<br />
indigenous people, mostly old men,<br />
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TRIBAL RIGHTS<br />
women and children defied the odds<br />
and reached the borders of Tripura in<br />
India. They had managed to remain<br />
undetected by the Bangladesh army<br />
since fleeing the atrocities committed<br />
in Matiranga. However, a few miles<br />
before reaching security, they were<br />
spotted by the BDR and subsequently<br />
escorted back to hostile lands. The<br />
BDR then incited the residing<br />
Bengali settlers to act “correspondently”<br />
and avenge the actions of the<br />
SB and stood still as witnesses as this<br />
group of old men, women and children<br />
was brutally slaughtered. Due<br />
to many such horrendous actions<br />
throughout the war, around 70,000<br />
indigenous people with the majority<br />
being Chakmas were forced to flee<br />
the lands of their ancestors – lands<br />
that had been their possession before<br />
India, Pakistan and Bangladesh ever<br />
entered any history books. Many<br />
made it to safety but some faced a<br />
destiny known only to their<br />
assailants.<br />
Eventually a peace accord was<br />
signed in 1997, which reduced the<br />
level of systematic violence and general<br />
lawlessness of the region. It<br />
recognised some of the old demands<br />
found in the CHT Regulation 1900,<br />
but crucial parts are yet to be implemented<br />
or cleansed from any political<br />
self-interest. This includes the formation<br />
of a land commission to<br />
reclaim and dispose off land to its<br />
indigenous owners, a scheduled hill<br />
tracts district and regional councils<br />
to formally administer the region<br />
and ensure just treatment to all<br />
groups, and finally a dispersion of all<br />
Bangladeshi military camps in the<br />
area. The presence of the latter poses<br />
a constant threat to the Chakmas and<br />
there have been several military<br />
attacks against the indigenous population<br />
of late. Moreover, the military<br />
is reported to be actively involved in<br />
helping Bengalis to settle in the CHT,<br />
which renders the Chakmas and the<br />
other natives without any momentous<br />
means of opposition. A climate<br />
of fear is building and currently subverting<br />
what remains of any organised<br />
peaceful resistance on the part of<br />
the indigenous people. The situation<br />
is further endangered by the fact that<br />
the Bengali settlers have nowhere to<br />
go if the land commission and its<br />
directives are carried out, and therefore<br />
are unlikely to leave in a peaceful<br />
manner. However, not every<br />
Bengali settler wish to remain in the<br />
CHT and have voiced their willingness<br />
to leave provided that land is<br />
given in areas outside the CHT. In<br />
essence, it is clear that the peace<br />
accord is adhered to in ways that are<br />
disadvantageous to the tribal groups,<br />
leaving them vulnerable to illegal<br />
oppression by the Bangladeshi<br />
authorities as well as the Bengali settlers.<br />
Whether or not there are religious-nationalistic<br />
grounds, it is<br />
indeed a fact that the Buddhist tribal<br />
groups have faced extensive oppression<br />
at the hands of the various<br />
Islamic governments. The constitution<br />
of Bangladesh solely recognises<br />
Islam as the state religion and<br />
Bengali as the only language. This<br />
amplifies the creation of a homogenous<br />
Bengali Muslim society with no<br />
room for other groups or national<br />
identities. Furthermore, representatives<br />
of the Bangladesh government<br />
have under the auspices of the<br />
United Nations occasionally<br />
declared that there are no “indigenous”<br />
people in Bangladesh.<br />
Although this can be cast aside as a<br />
debate on semantics, constitutionally,<br />
there is one people, one language<br />
and one religion in Bangladesh. The<br />
ill-treatment and torture, threats and<br />
killings, along with destruction of<br />
houses and temples have forced<br />
many of the indigenous people to<br />
search for a better life elsewhere.<br />
Many of those have thus placed their<br />
hopes for a better life outside<br />
Bangladesh and across the borders<br />
to India.<br />
Stateless people in India<br />
The first group of refugees from the<br />
CHT was given migration certificates<br />
to enter India in 1964. This was a testament<br />
to the willingness of the government<br />
to accept the Chakmas as<br />
future citizens of India. Currently,<br />
approximately 80,000 Chakma<br />
refugees are residing in the state of<br />
Mizoram, 50,000 in Tripura and<br />
100,000 in Arunachal Pradesh. Many<br />
of those have come to lead a better<br />
life and have eventually developed<br />
strong ties with the region. They<br />
have voted for state elections and<br />
paid taxes on the lands. The new<br />
generations have been born in India<br />
and never known any other home.<br />
Despite the initial willingness of the<br />
Chakmas are a<br />
suppressed lot.<br />
In India they are<br />
denied citizenship<br />
and access to<br />
fundamental rights<br />
notwithstanding<br />
their presence and<br />
exertion of influence<br />
in the country for<br />
generations. But as<br />
often seen in history,<br />
inhabiting lands for<br />
generations is not<br />
always a precondition<br />
for exercise of<br />
the rights<br />
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TRIBAL RIGHTS<br />
Indian government to accept the<br />
Chakmas as statehood, many are still<br />
denied citizenship and the rights and<br />
privileges they are entitled to. Even<br />
after 43 years since the first wave of<br />
Chakma refugees crossed the Indian<br />
borders from Bangladesh, they are<br />
the victims of many unjust practices<br />
directly flowing from this stateless<br />
position. The nature and gravity of<br />
the problems faced by the Chakmas<br />
differs from state to state, ranging<br />
from the non-availability of employment,<br />
trade licenses, education, security<br />
and basic health facilities.<br />
Hunger and poverty are a chronic<br />
and pervasive problem for the community<br />
and they have faced wholesale<br />
confiscation of ration cards and<br />
subsequent denial of assistance. In<br />
1991, government agencies stopped<br />
providing Chakma farmers with<br />
improved seeds, fertilisers, pesticides,<br />
agricultural tools and implements<br />
at subsidised rates, which are<br />
necessary for the economic development<br />
of this tribe. This continued<br />
bureaucratic denial of the right to<br />
apply for citizenship must be seen as<br />
in direct violation of the laws in<br />
India. By any reading of the Indian<br />
citizenship law, the Chakmas are<br />
legally eligible to be citizens by birth,<br />
or because they came to the country<br />
on a certain date as the following<br />
provides:<br />
Section 5(1)(a) of the Indian<br />
Citizenship Act, 1955 as amended by<br />
Act No 51 of 1986 states: “Persons of<br />
Indian origin who are ordinarily resident<br />
in India and have been resident for five<br />
years immediately before making an<br />
application for registration shall be eligible<br />
to be registered as citizens of India.”<br />
Sections 3(1) and 3(1)(a) state:<br />
“Except as provided in sub-section (2),<br />
every person born in India, on or after<br />
the 26th day of January, 1950, but before<br />
the commencement of the Citizenship<br />
Amendment Act, 1986; ... shall be a citizen<br />
of India by birth.<br />
This was also cemented by the<br />
ruling of the Supreme Court in 1996,<br />
in which every Chakma refugee who<br />
met the requirements should be<br />
counted as eligible to Indian citizenship<br />
in the state of Arunachal<br />
Pradesh — a ruling that was transcendent<br />
to all other states. The<br />
Chakmas, especially in Arunachal<br />
Pradesh, are subject to severe unjust<br />
and inhuman practices; not only<br />
have the state authorities refused to<br />
comply with the verdict of the<br />
Supreme Court, some reports even<br />
suggest that the tribals have been<br />
subjected to sectarian violence supported<br />
by the state government. The<br />
fact of the matter is that the Chakmas<br />
are facing the same struggle in India<br />
from which they have tried to escape<br />
for almost half a century in their land<br />
of origin and they have nowhere to<br />
turn to seek help. In recognition<br />
hereof, they have tried to change<br />
their circumstances on their own by<br />
accessing the political processes that<br />
affect them. In 1991, the Chakmas of<br />
Arunachal Pradesh formed the<br />
Committee for Citizenship Rights of<br />
the Chakmas of Arunachal Pradesh<br />
(CCRCAP), but indicative of their<br />
desperate situation, this move met<br />
with condemnation by Indian<br />
authorities and nationalist movements.<br />
As such, the All Arunachal<br />
Pradesh Students Union (AAPSU)<br />
responded with a “Quit Arunachal<br />
Pradesh” notice to the Chakmas,<br />
demanding their departure from the<br />
state by September 30, 1994. In fear of<br />
the fatalistic repercussions, a large<br />
number of Chakmas fled the state to<br />
take refuge in the neighbouring state<br />
of Assam where the state government<br />
issued a “shoot at sight” order<br />
against them. This was brought to<br />
the attention of the National Human<br />
Rights Commission (NHRC), which<br />
directed the state government of<br />
Arunachal Pradesh and central government<br />
to provide information<br />
about the actions taken to protect the<br />
lives of the Chakmas. In the meantime<br />
however, all state party-leaders<br />
and the AAPSU held a meeting on<br />
September 2, 1995 where they passed<br />
a unanimous resolution to resign<br />
from national party membership if<br />
the Chakmas as well as the Hajongs,<br />
another refugee tribe from the CHT,<br />
were not deported by December 31,<br />
1995.<br />
The Chakmas are thus unwanted<br />
people in both India and in their former<br />
ancestral lands in Bangladesh.<br />
Over the years, some of the CHT<br />
refugees have returned to<br />
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TRIBAL RIGHTS<br />
Bangladesh under the conditions<br />
that the Bangladesh government<br />
return their lands as well as ensure<br />
their safety. However, only a small<br />
percentage of these promises were<br />
kept. And although the land legally<br />
belongs to the indigenous people,<br />
many of the crucial land documents<br />
have been destroyed or lost during<br />
their escape to India and the only<br />
records of the deeds are presently<br />
in the hands of the Bangladeshi<br />
authorities.<br />
Current affairs in Bangladesh<br />
Bangladesh has suffered from political<br />
violence and countless transitions<br />
of power since its birth in 1971.<br />
Corruption has been prevalent<br />
together with malicious rivalry<br />
between political parties leading to<br />
further political instability in the<br />
country. Following a buildup of violence,<br />
a “caretaker” government took<br />
over the leadership of the country on<br />
January 11, 2007 with the aim of rooting<br />
out corruption and initiate democratic<br />
reforms. Many politicians and<br />
officials were arrested and military<br />
officers removed from positions<br />
within the state of affairs. This development<br />
culminated with the democratic<br />
election on December 29, 2008<br />
whereby Sheikh Hasina and her<br />
Awami League party took office.<br />
Violence and threats against the<br />
Chakma and the indigenous people<br />
of the CHT intensified as well. As<br />
political rights may officially have<br />
been installed and many necessary<br />
changes made within, it still remains<br />
to be seen whether the rule of law in<br />
Bangladesh continues to be subverted<br />
to individual political concerns,<br />
weak institutions and a gross disregard<br />
for human rights. There have<br />
been no elections held in the local<br />
bodies of the CHT, where non-elected<br />
officials are still presiding. It is<br />
clear that democracy in the CHT<br />
must be implemented in line with the<br />
rest of the country and the government<br />
of Bangladesh will have to provide<br />
a timeline to hold such elections<br />
in both the hill district councils and<br />
the regional council of the CHTs.<br />
Wake up call<br />
The Chakmas are thus languishing as<br />
stateless people. For more than two<br />
centuries, they have not been in<br />
charge of their own faith and have to<br />
Learning from the<br />
history of the Tibetan<br />
refugees, who have had<br />
their conditions<br />
improved due to<br />
enormous exposure<br />
through media and<br />
within political circles,<br />
Chakmas have to follow<br />
the similar way to have<br />
any future. Given that<br />
Bangladesh is heavily<br />
dependent on foreign<br />
aid, a part of the<br />
solution to the problem<br />
lies in the hands of<br />
the donor countries<br />
a larger or lesser extent been<br />
deprived of their right to land, culture,<br />
language and religion. In<br />
Bangladesh, they have faced cruel<br />
and horrific treatment at the hands of<br />
the military and been the target of<br />
genocide. In both India and<br />
Bangladesh, they lack the protection<br />
of the country’s legal safeguards, the<br />
access to equal participation in political<br />
processes, and other rights and<br />
privileges conferred by citizenship.<br />
As a consequence they are victimised,<br />
exacerbated by the fact that<br />
any abandonment of the Chakma<br />
people is politically costless due to<br />
their stateless position. But, time is<br />
running out. The ones who are left in<br />
the CHT are losing their unique culture<br />
through the influence of Bengali<br />
nationalism. If nothing is done to<br />
bring the world’s attention to the<br />
atrocities committed against this<br />
ancient tribe and aid is not provided,<br />
it is only a matter of time before this<br />
unique culture is lost forever.<br />
Learning from the history of the<br />
Tibetan refugees, who have had their<br />
conditions improved due to enormous<br />
exposure through media and<br />
within political circles, Chakmas<br />
have to follow the similar way to<br />
have any future. Given that<br />
Bangladesh is heavily dependent on<br />
foreign aid, a part of the solution to<br />
the problem lies in the hands of the<br />
donor countries. It is crucial that they<br />
use their economic levers to exert<br />
force for a change in the policies<br />
towards the CHT. And as Sheik<br />
Hasina and her Awami League won<br />
by a landslide and now has a strong<br />
mandate, they have a unique opportunity<br />
to address the human rights<br />
problems in the CHT that have been<br />
ignored by successive governments.<br />
Bangladesh has also ratified the<br />
International Covenant on Civil and<br />
Political Rights and the International<br />
Covenant on Economic, Social and<br />
Cultural Rights 1 , and together with<br />
international support, this is a road<br />
for the Chakmas to pursue. One must<br />
remember that it is not the pursuit of<br />
the right to self-determination that<br />
creates conflict, but the denial of the<br />
same. There are no longer any safe<br />
lands deep in the jungles to where<br />
the Chakmas can resettle and practice<br />
their culture. What is left for the<br />
Chakmas is either to face unjust<br />
treatment and merge with ways alien<br />
to theirs, or retreat into the dense forest<br />
of their minds. The latter, too, will<br />
only last for a time.<br />
Footnote:<br />
1. Article 1 of both covenants reads: “All<br />
peoples have the right of self-determination.<br />
By virtue of that right they freely determine<br />
their political status and freely pursue their<br />
economic, social and cultural development.”<br />
–The author was an<br />
intern with Juvenile<br />
Justice Initiative at HRLN<br />
80<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
ENVIRONMENT<br />
Haunting Beauty<br />
of the Ghats<br />
The charm of the ecological unit<br />
called Sahyadri is there! The<br />
more you visit Sahyadri or the<br />
Western Ghats the more you<br />
realise how little you know about<br />
nature. Flipping through Sahyadri:<br />
Reminiscences and Reflections -- edited<br />
by Sudhirendar Sharma and published<br />
by Prakruti Hulemalgi<br />
Brothers Uttara Kannada in<br />
Karnataka on behalf of the Save<br />
Western Ghats Campaign, one easily<br />
agrees with the editor that Sahyadri<br />
is a veritable laboratory where nature<br />
is still busy conducting its evolutionary<br />
experiments. The Sanskrit word<br />
Sahyadri truly defines the depth and<br />
dimension, richness and diversity of<br />
Sahyadri, re-christened as Western<br />
Ghats by the colonialists.<br />
The book makes a fascinating<br />
reading and tells about the rich geography<br />
and the diversity of Sahyadri's<br />
cultural heritage. According to<br />
Sharma, so ancient is its creation that<br />
some of the underlying rocks in the<br />
region are considered to be around<br />
two thousand million years old. Yet<br />
the region has been active with high<br />
potential for erosion and correspondingly<br />
high sedimentation yields.<br />
"Sahyadri like the South American<br />
rainforests form the girdle of the<br />
earth and help maintain global ecological<br />
balance", opines Sharma. This<br />
fact may hold greater significance<br />
given that the monsoon occurrence,<br />
amongst other reasons, has direct<br />
correlation to the geological existence<br />
of the Sahyadri. The editor is<br />
quick enough to notice that the geomorphology<br />
of the Sahyadri has been<br />
its nemesis as high slopes, deep<br />
gorges and estuaries have become<br />
the most desired sites for hydroelectric<br />
and thermal power projects.<br />
Besides, extraction of mineral<br />
deposits has contributed to the<br />
Sahyadri: Reminiscences and Reflections captures the<br />
diversity of the Western Ghats or Sahyadri while touching<br />
upon the ecological wounds inflicted by the greedy and<br />
powerful, writes Suresh Nautiyal<br />
destruction too. In a nutshell, ecological<br />
destruction continues in the<br />
name of development.<br />
The book has three indiscrete sections.<br />
The first section comprises of<br />
three articles, while the second<br />
explores the ecological riches of the<br />
ecological unit. The last section captures<br />
the contours of current developmental<br />
challenges in the backdrop<br />
of the historic Silent Valley campaign.<br />
Sharma has included writings<br />
of the activists like Madhav Gadgil/S<br />
Narendra Prasad/KM Hegde, Claude<br />
Alvares, Ian Lockwood, KA Shaji,<br />
Shekar Dattatri, NA Naseer, Zafar<br />
Futehally, Sebastian Rodrigues and<br />
Max Martin in the volume.<br />
According to the chapter<br />
"Mountains Without Snowpeak", the<br />
geology of Sahyadri creates three distinct<br />
zones across its long stretch. In<br />
many ways, the region justifies it<br />
being called ghats as it offers the<br />
stairs or steps that are commonly<br />
associated with the term 'ghat'.<br />
In the chapter "Asserting the Right<br />
Cause", Claude Alvares draws parallels<br />
between the Chipko Movement<br />
in the central Himalayan region<br />
(Uttarakhand) and the Appiko<br />
Movement in his home state of<br />
Karnataka. He points out that while<br />
the Chipko Movement's fierce passion<br />
captured the hearts of people<br />
soon becoming a legend; the Appiko<br />
Movement in Karnataka began as a<br />
movement to protect forests and the<br />
agriculture surpassing beyond that<br />
stage to a wider consciousness<br />
of more important ecological<br />
tasks, particularly conservation of<br />
Sahyadri, the oxygen bank of<br />
the nation.<br />
The chapter "The March That Was<br />
…" unravels the fact that the principal<br />
sufferers of forest loss in the Ghats<br />
have not been the animals alone but<br />
tribal and rural poor as well.<br />
The chapter "Mine But Not Mine"<br />
expresses concern over mining in the<br />
state of Goa. Sebastian Rodrigues<br />
points out in this article that the history<br />
of mining in Goa is intrinsically<br />
linked with its colonial past and that<br />
who worked for the erstwhile<br />
Portuguese dynasty have huge<br />
stakes in the state's mining industry<br />
today. According to him, the mining<br />
has badly damaged agriculture and<br />
silted rivers resulting in spontaneous<br />
unrest amongst the villagers.<br />
The chapter "Silent Valley" warns<br />
that no battle in the field of conservation<br />
is ever final, and there is no<br />
guarantee that the Silent Valley will<br />
remain silent for all time to come.<br />
The last chapter "Silent Valley in<br />
Turmoil … Again" by Max Martin<br />
rightly concludes that the protection<br />
of biodiversity demands preserving<br />
the largest possible natural habitat<br />
unit, including the Silent Valley.<br />
The beautiful photographs by NA<br />
Naseer, for whom forest is the first<br />
home, give true meaning to the<br />
words written in the book. In its<br />
Preface, Sharma rightly points out<br />
that the book captures the paradise<br />
that is Sahyadri, through NA Naseer's<br />
lense; and the hell that has been let<br />
lose on it, through the pens of noted<br />
writers. In brief, the book captures<br />
the diversity of Sahyadri even as it<br />
examines the ecological wounds. It is<br />
worth spending Rs 200 for a 80-page<br />
colour volume on the rich biodiversity<br />
of Sahyadri! ■<br />
www.combatlaw.org<br />
81
JUDGEMENT<br />
HIV/AIDS: HC brings hope to many<br />
In a landmark judgement that has wide implications, the Bombay High Court has ordered<br />
free of cost second line treatment to persons living with HIV/AIDS, thus bringing a sigh<br />
of relief to many who were not responding to first-line therapy<br />
The Network of Maharashtra<br />
People with HIV had filed a<br />
petition in public interest in<br />
March 2009 in the Bombay High<br />
Court against the Ministry of Health<br />
& Family Welfare of the Union of<br />
India, the National AIDS Control<br />
Organisation (NACO), Maharashtra<br />
State AIDS Control Society, Sir JJ<br />
Hospital and the Ministry of Health<br />
of the State of Maharashtra on the<br />
issue of provision of free second line<br />
treatment to HIV positive persons<br />
who were not responding to first line<br />
antiretroviral therapy (ART).<br />
The petitioners demanded that<br />
the respondents be directed to ensure<br />
that all those in need of second line<br />
ART on the basis of clinical evaluation<br />
be provided with such treatment<br />
free of cost irrespective of geographical<br />
location, registration with an ART<br />
centre, time-span on first-line ART or<br />
any other condition. The petitioners<br />
stated that despite the initial phase of<br />
the pilot programme for provision of<br />
second line ART being completed,<br />
there were stringent restrictions as to<br />
who can obtain the treatment at centres<br />
and that those restrictions were<br />
not based on medical need but on<br />
arbitrary cut-offs including length of<br />
time on first line treatment, residential<br />
address of the patient etc.<br />
The Network of Maharashtra<br />
People with HIV had conducted a<br />
fact-finding study amongst people<br />
registered at ART centres in Pune for<br />
whom first line treatment was no<br />
longer working. Details of eight such<br />
extremely critical persons, some of<br />
whom had a CD count as low as 14,<br />
were provided in the petition with<br />
their consent. The petition also pointed<br />
out the shocking revelation that<br />
people who are eligible for second<br />
line treatment were being made to<br />
sign waivers to the effect that whilst<br />
they understand that first line ART<br />
was not working on their bodies,<br />
they could not afford second line<br />
ART and would hence like to continue<br />
with the first line treatment. These<br />
people did not understand what they<br />
had signed and the implications of<br />
such a waiver upon their<br />
treatment.<br />
The Government of India had<br />
begun providing first line treatment<br />
to people living with HIV/AIDs since<br />
2004. However, resistance to first line<br />
ART had developed gradually as a<br />
result of which many persons were<br />
not responding to the treatment.<br />
After a campaign by several advocacy<br />
groups across India, the<br />
Government started a pilot programme<br />
in 2008 in two hospitals (Sir<br />
JJ Hospital in Mumbai and<br />
Tambaram Sanatorium near<br />
Chennai) for dispensation of second<br />
line ART. Under the programme anyone<br />
not living in the state was not eligible<br />
to receive the treatment regardless<br />
of medical need. It was further<br />
announced that from December 2008,<br />
the Government would bring eight<br />
more centres across India under the<br />
second line treatment pilot project.<br />
However, at the time of filing of the<br />
petition, some of these centres neither<br />
have drugs nor the facilities for<br />
testing and provision of the treatment.<br />
In an affidavit filed by NACO<br />
in the Supreme Court in October<br />
2008 in a related matter, it was stated<br />
that the technical resource group at<br />
NACO had, on the basis of the prevailing<br />
scenario, recommended that<br />
second line ART be provided in a<br />
phased manner starting with a pilot<br />
project at two centres and that during<br />
the pilot project, people who had<br />
been on ART at those centres for at<br />
least six months be considered for<br />
treatment.<br />
By an order dated August 13,<br />
2009, the High Court recorded that<br />
the competent authority of the<br />
respondents had decided to provide<br />
free of cost appropriate treatment<br />
including second line and any other<br />
treatment as may be advised to the<br />
petitioners and any other patient<br />
with HIV.<br />
This order will provide relief to<br />
several persons across the country<br />
who are not responding to first line<br />
treatment but who are unable to<br />
obtain second line ART, as they are<br />
not eligible under the arbitrary<br />
norms laid down by NACO. ■<br />
82<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
FARMERS' SUICIDE<br />
Farmer graveyard<br />
While Chhattisgarh is much talked about for the Naxal<br />
threat alone, another grave crisis has been kept carefully<br />
under the wraps. But reports reveal that hundreds of<br />
farmers, trapped in a vicious circle of debt, have been<br />
silently committing suicides for nearly a decade now.<br />
Shubhranshu Choudhary reports from the ground zero<br />
Whichever way we calculate<br />
the farmer suicides data<br />
from the national<br />
crime records bureau (NCRB),<br />
Chhattisgarh retains a place in the<br />
top five states. It fits in the criteria to<br />
reserve its hegemony among the<br />
other competing states at the fourth<br />
position considering the total number<br />
of farmers committing suicide;<br />
number three considering the farmers<br />
suicide rate (FSR) per one lakh<br />
farmers; number three again considering<br />
the rate of farmers' suicide per<br />
one lakh male farmers; and number<br />
one considering farmers' suicide rate<br />
per one lakh population.<br />
Chhattisgarh tops this list every year<br />
since its inception in 2000.<br />
When Vidarbha saw 1,065 farmer<br />
suicides in 2006, Chhattisgarh saw<br />
1,483 the same year. According to<br />
NCRB, the suicide rate among<br />
Chhattisgarh's farmers in 2006 was<br />
6.49 per one lakh farmers, followed<br />
by Maharashtra with 4.28, Kerala<br />
with 3.37, Andhra Pradesh 3.24 and<br />
Karnataka with 2.57.<br />
While farmer suicides in other<br />
states have drawn much media and<br />
government attention, those in<br />
Chhattisgarh have gone virtually<br />
unnoticed. Yet, the suicide rate<br />
among farmers is the highest in<br />
Chhattisgarh. The media in<br />
Chhattisgarh claims farmer suicides<br />
does not happen here. Their rather<br />
simplistic logic is that farmers do not<br />
grow cash crop in the state and<br />
paddy does not require much investment,<br />
hence the story is not true. The<br />
chief minister has vehemently proclaimed,<br />
"Not a single farmer has<br />
committed suicide ever due to debts.<br />
It is not the issue but the people writing<br />
about it who need to be investigated."<br />
So what is the real story?<br />
Police records show the details of<br />
farmers who commit suicide due to<br />
debt. Moreover, some more digging<br />
up of the issue reveals that the problem<br />
is very complex. The big farmers<br />
in Chhattisgarh have almost stopped<br />
tilling the farms on their own and<br />
lease out their lands to small farmers<br />
and the landless. Hence, many small<br />
farmers end up cultivating bigger<br />
farms than they themselves own. The<br />
input cost in paddy cultivation has<br />
been steadily growing and the labour<br />
cost has gone up drastically with<br />
NREGA coming in force. After giving<br />
rent to the landowner, the cultivator<br />
is left with abysmally low profit. So<br />
the farmer, who cultivates, thus is<br />
compelled by circumstances to take<br />
loan which is many times borrowed<br />
from a local moneylender who<br />
charges a higher rate of interest. The<br />
landless cultivating a farm of a big<br />
landowner does not get any loan<br />
from the co-operatives because they<br />
does not have papers to be submitted<br />
as against security. Consequently,<br />
after being indebted to the moneylenders<br />
from head to toes, many of<br />
such farmers and the landless commit<br />
suicide due to continuous distress.<br />
Unfortunately, as they farm on<br />
leased land, their suicide is not<br />
lodged as farmers' suicide in police<br />
records, otherwise, the actual number<br />
of farmers killing themselves<br />
would be even higher.<br />
The districts with the highest<br />
number of farmers' suicide are the<br />
ones that have the maximum utilisation<br />
of fertilisers. The rate of suicides<br />
in the tribal districts of north and<br />
south Chhattisgarh is less than half<br />
of that of the central part of the state.<br />
So, is it the income from forests in the<br />
north and south that is saving tribal<br />
farmers in these areas? The farmers<br />
opined that if the labour cost is calculated<br />
at the rate of minimum wages,<br />
then the minimum support price for<br />
paddy should be at least the double,<br />
if not more. A moneyed farmer earns<br />
profit today only because he pays<br />
less than the minimum wage to the<br />
labour. Nevertheless, getting labour<br />
at cheaper rates is becoming much<br />
difficult, especially closer to the<br />
urban settlements. Many farmers are<br />
keen to sell off their land and resort<br />
to self-farming only as a last option<br />
available with them.<br />
The police records have many<br />
cases of farmers' suicides with reasons<br />
of death stated as, economic<br />
pressure, mental illness, drinking,<br />
fight, tension and "unknown". Farm<br />
scientist Sanket Thakur explains,<br />
"The income from farming is reducing<br />
every year and the farmer goes<br />
into debt ordinarily. Sometimes it is<br />
the general sense of hopelessness<br />
which translates into suicides. The<br />
immediate reason of a suicide might<br />
be a fight with the wife, but in many<br />
of these cases farming distress provides<br />
an active background."<br />
The saga is not just to be concluded<br />
here. This subject needs thorough<br />
investigation for unravelling the puzzle<br />
of loss of hard pressed human<br />
lives. Bob Dylan once sang, "How<br />
many deaths does it take to be known<br />
that too many people have died?" An apt<br />
question for Chhattisgarh.<br />
–The writer is an<br />
activist who runs an<br />
internet-based citizen<br />
journalism group, CGNet<br />
www.combatlaw.org 83
VILLAGE COURTS<br />
Until now, no clear<br />
distinction has been made<br />
between a Gram Nyayalaya<br />
and a Nyaya Panchayat<br />
since both are being used<br />
in an undifferentiated<br />
manner to refer to justice<br />
delivery mechanism at the<br />
grassroots level. A<br />
superficial view may create<br />
a misconception that the<br />
two are competing entities,<br />
but a closer look shows the<br />
two may actually be totally<br />
different in their approach<br />
Speedy justice at grassroots<br />
With an aim to make the justice<br />
delivery system cost<br />
effective and easily accessible,<br />
efforts have been in place to<br />
decentralise it by exploring and instituting<br />
various supporting mechanisms<br />
for several years.<br />
The first step was introduction of<br />
Lok Adalats to reduce the delays and<br />
burden on over-stressed judiciary<br />
and judicial proceedings. Lok Adalat<br />
means people's court, in contrast to<br />
the regular law courts established by<br />
the government. It is one such effective<br />
alternative dispute resolution<br />
mechanism which has been functioning<br />
for last few years. Though the<br />
Lok Adalat lends itself to easy settlement<br />
of money claims there is scope<br />
for settlement of other disputes as<br />
well. Partition suits, damages and<br />
matrimonial cases can be easily settled<br />
before these courts as the scope<br />
for compromise through an<br />
approach of give and take is high in<br />
these cases.<br />
It primarily focuses on bringing<br />
an amicable settlement between the<br />
parties thereby reducing the litigation<br />
process. However, Lok Adalats<br />
by themselves are not sufficient.<br />
The further need to create a<br />
decentralised mechanism has been<br />
explored by the law commission in<br />
its14th, 114th, and 154th reports. The<br />
Balvant Rai Mehta committee report<br />
stressed on setting up legal aid structures<br />
for the village panchayats so as<br />
to provide the rural populace an easier<br />
access to inexpensive and speedy<br />
justice delivery mechanism.<br />
The task assigned to the judicial<br />
reforms commission was referred to<br />
the law commission in 1986 with the<br />
following mandate of:<br />
(i) Establishing and strengthening<br />
the institution of Nyaya Panchayats<br />
and other mechanisms of resolving<br />
disputes in rural areas.<br />
(ii) Setting up a system of participatory<br />
justice with defined jurisdiction<br />
and powers in suitable areas.<br />
(iii) As a response, the law commission,<br />
in its 114th report, explores various<br />
options and proposed setting up<br />
of Gram Nyayalayas.<br />
Similarly, the 154th law commission<br />
makes references to Nyaya<br />
Panchayats and Gram Nyayalayas<br />
interchangeably.<br />
As of today, there are two parallel<br />
processes going on. One initiated by<br />
the law ministry, which is about setting<br />
up of Gram Nyayalayas as the<br />
lowest wrung of the judiciary. The<br />
bill on Gram Nyayalayas was introduced<br />
in 2005 but withdrawn<br />
because of financial constraints<br />
envisaged by the finance ministry in<br />
operationalising it. Subsequently, it<br />
was reintroduced and passed in 2008.<br />
Parallel to that, the ministry of<br />
Panchayati Raj has undertaken the<br />
task of setting up Nyaya Panchayats<br />
which envisage mechanisms for participatory<br />
dispute resolution and justice.<br />
A committee was set up to deliberate<br />
upon the issue and formulated<br />
a bill. The bill was sent for feedback<br />
and suggestions to various departments<br />
and states and has now been<br />
incorporated in the Gram Swaraj Bill,<br />
2009 that has been circulated by the<br />
Panchayati Raj ministry.<br />
Interestingly, until now, no clear<br />
distinction has been made between<br />
Gram Nyayalaya and Nyaya<br />
Panchayat. Both are being used in an<br />
undifferentiated manner to refer to<br />
justice delivery mechanism at the<br />
grassroot level. A superficial view of<br />
the matter may create a misconception<br />
that the two are dealing with the<br />
same issue and, therefore, are competing<br />
entities. A closer look gives a<br />
clear picture that the two may actually<br />
be dealing with the same matter<br />
but are totally different in their<br />
approach.<br />
Now the question arises that if<br />
the two are dealing with same matter<br />
but with different approaches,<br />
84<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
VILLAGE COURTS<br />
should the discussion be focused on<br />
which of the two is better and thereby<br />
choosing one over the other? Or is<br />
there a possibility of creating systems<br />
which are stand-alone institutions<br />
and yet complementing each other<br />
thereby at best making the effort of<br />
"access to justice" more comprehensive?<br />
In other words, the question is<br />
not whether Gram Nyayalayas are<br />
better than the Nyaya Panchayats or<br />
vice versa. Such a debate will only<br />
lead to a win-lose situation where the<br />
objective of creating a decentralised<br />
justice deliver mechanism will take a<br />
backseat.<br />
The two systems need to be<br />
looked at from the following dimensions:<br />
Basic approach<br />
One of the first things we need to<br />
understand is the difference in the<br />
basic approach of the two mechanisms.<br />
If one goes through Gram<br />
Nyayalaya Bill, 2008, it focuses on<br />
appointment of judicial officers for<br />
dispute adjudication. The GNB talks<br />
of setting up of courts at the village<br />
level for one or more gram panchayats.<br />
It is based on the same logic with<br />
which village health centres and primary<br />
healthcare centres were set up.<br />
While a doctor is available at the<br />
PHCs, the village health centre<br />
works as a preventive, first aid,<br />
health awareness and monitoring<br />
unit managed and manned by the<br />
community and ideally should be<br />
run and owned by the village<br />
Panchayat. Though the GNB relaxes<br />
the procedure and formalities, the<br />
basic approach is that of adjudication<br />
by an appointed body.<br />
If one looks at the state legislation<br />
of Bihar, Jammu & Kashmir, Haryana<br />
etc. the Nyaya Panchayats are envisaged<br />
as community-based bodies<br />
with elected representatives involved<br />
in the process of justice delivery.<br />
Thus the basic tenet of a Nyaya<br />
Panchayat is that of a self-managed<br />
body including raising its own<br />
resources.<br />
To further explore the philosophical<br />
underpinnings of both these systems,<br />
one has to be essentially rooted<br />
in an adversorial method where a<br />
technically qualified third party tries<br />
to render justice. The result is in the<br />
win-lose framework and there is no<br />
true solution to the dispute. The<br />
whole process is distant from the<br />
local reality and neutral to the sociocultural<br />
dimension of the dispute. It<br />
also has the advantage of being unbiased.<br />
The Nyaya Panchayats are participatory<br />
bodies that involve the community<br />
in the process of justice delivery<br />
while the Gram Nyayalayas<br />
exclude any people's participation.<br />
The Nyaya Panchayats, if constituted<br />
properly, can play a vital role in<br />
social engineering. It can provide an<br />
opportunity for changing the power<br />
balance in the villages. The Gram<br />
Nyayalaya, on the other hand, maintains<br />
the status quo by looking at disputes<br />
purely from a legal framework<br />
and is supposedly neutral to all other<br />
dimensions.<br />
Transparency<br />
The justice delivery process traditionally<br />
adopted by the Nyaya<br />
Panchayats should essentially be in<br />
the public domain. While the state<br />
enactments are silent on this aspect<br />
or at best talk of being "open" to public,<br />
the proposed Nyaya Panchayat<br />
Bill must emphasise on this aspect. It<br />
would have sanctity and respect in<br />
implementation due to peer pressure.<br />
Unlike the judgements of the<br />
court where very often execution<br />
becomes a problem, the decisions of<br />
Nyaya Panchayats will be simpler to<br />
execute.<br />
The Gram Nyayalayas, on the<br />
other hand, in the spirit of the regular<br />
judiciary will be behind the closed<br />
The Nyaya Panchayats are<br />
participatory bodies that<br />
involve the community in<br />
the process of justice<br />
delivery while the Gram<br />
Nyayalayas exclude any<br />
people's participation<br />
doors where community participation<br />
will be absent.<br />
Complex legality<br />
vs common sense<br />
The emphasis in a Nyaya Panchayat<br />
is on wisdom and common sense of<br />
the people to find solutions to disputes<br />
and in the last resort give an<br />
opinion as to what is just. The role of<br />
the Nyaya Sahayak or any technical<br />
person is basically to ensure compliance<br />
with legal and constitutional<br />
framework. The Gram Nyayalayas<br />
are based purely on adjudicating<br />
from legal-illegal framework and<br />
therefore, slowly may fall prey to<br />
procedures and/or delays as the person<br />
delivering justice has to be unbiased.<br />
Accessibility<br />
The Nyaya Panchayats will be operational<br />
within the boundaries of the<br />
village and therefore accessibility<br />
will be easier both in time and in distance.<br />
The Gram Nyayalays, however,<br />
will be at the Taluka levels or<br />
mobile at "convenient" places, hence<br />
may be difficult to access by the<br />
weaker sections of society as well as<br />
the time would be determined by the<br />
convenience of the Nyaya Adhikari<br />
and not by the community/litigant.<br />
The Nyaya Panchayats are envisaged<br />
as devolved entities for settling<br />
disputes and if necessary delivering<br />
justice locally. They come with inherent<br />
powers based on the faith put by<br />
people in the process whereas the<br />
Gram Nyayalayas are a result of further<br />
decentralisation of the hierarchical<br />
judiciary and derives its power<br />
from the superior courts.<br />
It is important to address the<br />
issue of what will be the relation<br />
between the two systems of justice<br />
delivery in rural India as there could<br />
be a duplication of jurisdiction. This<br />
can be avoided by fixing different<br />
pecuniary and imprisonment limits<br />
for the two bodies. The disputes with<br />
lesser pecuniary or punishment can<br />
be handled by the Nyaya Panchayats<br />
and beyond that limit can come in<br />
the purview of the Gram Nyayalayas.<br />
–Prepared by Centre For<br />
Social Justice for Indian Institute<br />
of Paralegal Studies, for the drafting<br />
committee appointed by the<br />
ministry of panchayati raj<br />
www.combatlaw.org 85
DOMESTIC WORKERS<br />
Domestic worker<br />
in a hostile world<br />
Languishing under the crushing wheels of poverty,<br />
thousands of women migrate from rural areas to mega<br />
cities in search of livelihoods. Ending up as domestic<br />
servants, in the absence of any legal mechanism to protect<br />
their rights they not only face discrimination and<br />
harassment at the hands of their employers but also<br />
become victims of abuse, exploitation and trafficking by<br />
mushrooming, often unregulated placement agencies.<br />
Anisha Mitra & Karelia Rajagopal carry out a survey in the<br />
national capital and present the chillingly grim side of our<br />
modern city<br />
In a memorable scene in Satyajit<br />
Ray's film Aparajito, the destitute<br />
Brahmin widow Sarbajaya watches<br />
her son learn to serve. She has recently<br />
obtained work as a cook in the<br />
household of a rich Brahmin, where<br />
her employers are considerate and<br />
inconsiderate in the manner of feudal<br />
lords. She observes from the top of the<br />
stairs as the master of the household<br />
sends for her son to light his pipe and<br />
tells him to pluck gray hairs from his<br />
head, rewarding him with a tip.<br />
The scene described above is as<br />
much a powerful comment on mother-love<br />
and gender expectations as it<br />
is about the extreme and peculiarly<br />
gendered stigma attached to the<br />
identity "domestic servant" in India.<br />
Recent studies on the working class<br />
in India have revealed that ideologies<br />
and practices of gender, caste and<br />
religion both shape the contours of<br />
the workplace and the trajectory of<br />
class identities.<br />
"Bai", "didi", "aaya"-- no matter<br />
what you call them -- the female<br />
domestic servants are an integral part<br />
of the Indian households to make<br />
their inhabitants relax and rejoice in<br />
leisure. But, there is a dark and probably<br />
heart wrenching reality behind<br />
that small, shy little smile she passes<br />
when you praise her.<br />
Domestic servants constitute a<br />
section in society which got no law to<br />
protect their profession. According to<br />
ILO, "a domestic worker is someone<br />
who carries out household work in a<br />
private household in return for<br />
wages". They, in fact, are not even<br />
recognised as labour to benefit from<br />
the labour laws. Their rights are at<br />
the mercy of the employer or the<br />
placement agencies, which have<br />
mushroomed like anything in the last<br />
5-6 years in urban areas to cater to the<br />
domestic needs of the city dwellers.<br />
These women are subjected to<br />
exploitation from all ends -- in terms<br />
of work, pay and worst of all in terms<br />
of dignity and humanity.<br />
Since there are no checks on the<br />
functioning of the placement agencies,<br />
their mode of work is highly<br />
questionable in the backdrop of gross<br />
violations of the rights of domestic<br />
servants. Majority of the women<br />
hired by these agencies are brought<br />
in from other states, mostly villages,<br />
on the pretext of getting work in the<br />
cities and end up being domestic<br />
helps. Many a times they are illiterate<br />
with a different language background<br />
and find it very difficult to<br />
communicate with their respective<br />
employers. This makes them more<br />
vulnerable.<br />
According to a recent United<br />
Nations Development Programme<br />
(UNDP) report, nearly 40 percent of<br />
domestic servants in India's financial<br />
capital Mumbai are under 15 years of<br />
age and the number seems to be<br />
increasing at an alarming rate. "Often<br />
these young domestic helpers are<br />
abused, verbally and physically and<br />
also sexually exploited," the report said.<br />
Yet there is no national legislation<br />
to protect the rights and ensure the<br />
welfare of this huge army of domestic<br />
workers. The women have no<br />
legal protection in terms of her<br />
employment and working conditions.<br />
They are completely at the<br />
mercy of their employers, and have<br />
no job security. There is an estimated<br />
population of more than 100,000<br />
domestic workers in Delhi alone, a<br />
figure which is expected to rise sixfold<br />
in the next five years, according<br />
to the International Labour<br />
Organisation (ILO).<br />
Growing consumerism, the need<br />
to earn by both partners, and the<br />
trend towards nuclear families has<br />
increased the demand for domestic<br />
helps across many cosmopolitan<br />
cities. To cater to the growing<br />
demand for them, a number of placement<br />
agencies have sprung up in<br />
cities across the country. But what<br />
might have been expected to streamline<br />
and regulate a sector where hitherto<br />
the employer called all the shots<br />
has not resulted in any improvement.<br />
A total absence of regulation under<br />
the labour laws has meant that the<br />
often exploitative nature of domestic<br />
work continues unabated. There are<br />
more than 2,400 domestic placement<br />
agencies operating in Delhi, out of<br />
86<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
DOMESTIC WORKERS<br />
which only 24 are registered with the<br />
department of labour. Most of them<br />
don't even have offices. They just<br />
give out telephone numbers, so it is<br />
difficult to track them down. (Source:<br />
RTI filed by Bachpan Bachao Andolan)<br />
Minors in demand<br />
The implication of the issue of<br />
licences is that it gives a legal authority<br />
to many to exploit and traffic people<br />
from one city to another.<br />
A substantial number of domestic<br />
servants, mainly young girls and<br />
women, are trafficked to cities from<br />
states like West Bengal, Orissa and<br />
Jharkhand. The source districts are<br />
some of the poorest in the country,<br />
inhabited by minorities, mainly<br />
scheduled tribes. Many of these girls<br />
and women are lured by agents in the<br />
villages with incentives of a good pay<br />
and life.<br />
Another implication is an increase<br />
in number of minors appointed as<br />
domestic helps. In wake of the Child<br />
Labour (Prohibition and Regulation)<br />
Act, 1986, the placement agencies<br />
have invented a new tactic of issuing<br />
forms which contain the details of the<br />
domestic worker, which is forwarded<br />
to the employer. The modus operandi<br />
is that any minor regardless of<br />
their age is registered as 18 years in<br />
the form. So when the employer is<br />
hiring a servant he is on paper<br />
employing a major and not a minor.<br />
This is done because many<br />
employers want young girls who can<br />
entertain their little children. Another<br />
reason why minors are in demand<br />
because they are inexperienced and<br />
hence don't offer resistance to the ill<br />
treatment meted out to them.<br />
The salary structure of the domestic<br />
servants depends upon the category<br />
they belong to, that is, there are<br />
generally three categories: Unskilled,<br />
semi-skilled and skilled. If a worker<br />
is unskilled they are paid anything<br />
between Rs1000-1,500, the semiskilled<br />
is paid around Rs 2,000 and a<br />
skilled is paid Rs 3,000. The employers<br />
are not supposed to pay the servants<br />
their wages but to the agency,<br />
which in turn leads to economic<br />
dependence of the workers on the<br />
agency people, who keep a larger<br />
share of the income as "commission"<br />
and give meagre amount to the servants.<br />
What human rights activists<br />
dread most is that the agencies are<br />
found to be dealing in other forms of<br />
trafficking as well such as sex trafficking,<br />
bonded labour, camel jockeys<br />
etc. It is in cases like these where the<br />
labour cannot be traced or is being<br />
hidden by the agents raising doubts<br />
of immoral trafficking ring.<br />
The trafficking angle<br />
People brought in from the interiors<br />
of India to metropolitan cities to<br />
work as domestic labour is also a<br />
form of trafficking.<br />
Most of the cases in which<br />
Human Rights <strong>Law</strong> Network<br />
(HRLN) has intervened; it has been<br />
observed that the pattern or situation<br />
has been such that it can easily be<br />
classified as "trafficking". There is a<br />
definite transportation, harbouring<br />
and recruitment of the labour.<br />
Maximum number of the complaints<br />
received during the research<br />
was in context of money. Most families<br />
complained that the money their<br />
wards were earning wasn't reaching<br />
them at all as promised by the agents<br />
of the placement agencies.<br />
At first it appeared that the families<br />
were only concerned with their<br />
wards' money. But the reality was that<br />
the only way most of the families<br />
back home knew that their girls were<br />
doing fine was through the money<br />
reaching them on a regular basis. The<br />
only communication was through<br />
money. Thus once the money stopped<br />
flowing in, the families would sense<br />
trouble and file a complaint.<br />
Another problem that is generally<br />
reported is that the girls go missing.<br />
The agents inform the family members<br />
that their girl has left the destination<br />
place without informing anyone.<br />
In such cases there are two scenarios<br />
which have been observed,<br />
that either the labour is taken by the<br />
agent and employed with another<br />
agency or is traded or trafficked for a<br />
different purpose altogether. There is<br />
also a situation when the girls run<br />
away either because they have been<br />
mistreated or because they aren't<br />
allowed to go back home.<br />
Need for regulations<br />
It is important for us to have an<br />
overview of the existing regulations<br />
and legal provision for domestic<br />
workers in our country to strategise<br />
and move forward. The ILO is coming<br />
up with a convention, 'Decent<br />
work for Domestic Workers', to set<br />
labour standards for domestic/household<br />
workers at the International<br />
Labour Conference in 2010.<br />
The Unorganised Sector Workers'<br />
Social Security Act, 2008, includes<br />
domestic workers. The Act has provisions<br />
for identity cards, registration<br />
facilities and other social security<br />
benefits, but there is no mention<br />
about regulation of work conditions<br />
or working hours.<br />
The national commission for<br />
women along with a sub-committee<br />
of trade unions and NGOs working<br />
with domestic workers has undertaken<br />
to formulate legislation for domestic<br />
workers.<br />
In July 2007, Shramajivee Mahila<br />
Samity (SMS) and the Human Rights<br />
<strong>Law</strong> Network filed a petition in the<br />
Delhi High Court demanding police<br />
action against domestic placement<br />
agencies in Delhi. They submitted<br />
complaints from 159 domestic workers<br />
who had been cheated and<br />
abused by five agencies in the city.<br />
During the court hearings, corrupt<br />
links between officials and agency<br />
owners became apparent. The<br />
court demanded that the state government<br />
collaborate with civil society<br />
to frame guidelines for regulating the<br />
agencies. But the state's counsel, and<br />
especially the Department of Labour,<br />
has done nothing till now.<br />
Also what is suggested is that the<br />
government makes a provision for<br />
police to keep a regular check on the<br />
placement agencies that have been<br />
given licences and ensure that there<br />
are no illegal issues involved viz their<br />
functioning. There should be a special<br />
officer appointed to deal with<br />
these cases.<br />
Conclusion<br />
There is an urgent need to either<br />
include domestic servants into preexisting<br />
laws or to devise new laws<br />
which would provide them with provisions<br />
to cater to their basic rights<br />
and needs. They need legal safeguards<br />
to protect their salaries, their<br />
treatment at the hands of both the<br />
placement agencies/agents and the<br />
employers and from immoral<br />
trafficking.<br />
–The writers were interns<br />
with the Anti-Trafficking<br />
Initiative at HRLN<br />
www.combatlaw.org 87
WORDS & IMAGES<br />
Thorny journey to justice<br />
Somehow off-the-track book, "<strong>Law</strong> & Life" by Justice VR Krishna Iyer<br />
throws light on complex and multiple aspects of the<br />
justice delivery system in India<br />
Suresh Nautiyal<br />
This time, Universal <strong>Law</strong><br />
Publishing Company has come<br />
out with a nice book that<br />
allows space for discussions on the<br />
subjects and issues that generally<br />
find space only in the legal academic<br />
circles. And interestingly, the book<br />
has been authored by no less a person<br />
than Justice (retd.) VR Krishna<br />
Iyer. The volume carries articles on<br />
different subjects - from law and life,<br />
people's access to judicial process,<br />
law and justice at the subordinate<br />
courts, Indian justice system, arrears<br />
of the court cases to capital punishment,<br />
tribal uplift and the rule of law,<br />
police, decadence of democracy,<br />
development and distributive strategy,<br />
system of elections in the country,<br />
disasters of the urban development,<br />
nuclear reactors, and Indian cricket.<br />
And most importantly, it has an autobiographical<br />
essay.<br />
Definitely, this volume is not<br />
among those kind of publications for<br />
which Universal is famous for. The<br />
author himself has handpicked this<br />
bouquet of articles to cater to different<br />
flavours of lawyers, laymen, and<br />
judges. So to say, the collection contains<br />
articles on judges, judicial system,<br />
constitutional law, democracy,<br />
arbitration, jurisprudence, Indian<br />
and international socio-political topics<br />
and much more.<br />
It makes a knowledgeable reading<br />
and engages the reader perfectly.<br />
In fact, Justice Iyer is one of the versatile<br />
authors who have written most<br />
of the aspects of law. His enlightened<br />
idea on law and contemporary<br />
jurisprudence is a path-making<br />
source for the present and future<br />
judicial system. Out of multifarious<br />
activities of his life, he always works<br />
out the time in writing for law and<br />
techno-socio matters, which becomes<br />
the flow of inspiration for the<br />
lawyers, judges, and the common<br />
people.<br />
Title : <strong>Law</strong> & Life<br />
Author: Justice VR<br />
Krishna Iyer<br />
Publisher: Universal <strong>Law</strong><br />
Publishing<br />
Company Pvt. Ltd.<br />
Price: Rs 295; Pp 228<br />
BOOK REVIEW<br />
This volume is not among<br />
those kind of publications<br />
for which Universal is<br />
famous for. The author<br />
himself has handpicked<br />
this bouquet of articles to<br />
cater to different flavours<br />
of lawyers, laymen, and<br />
judges<br />
Justice Iyer besides practicing<br />
law, defended peasants and workers<br />
against the exploitation of the feudal<br />
lords who had full support of the<br />
colonial regime. He even became an<br />
important minister in Kerala after reorganisation<br />
of the states. During his<br />
tenure as a judge at the Supreme<br />
Court, Justice Iyer played an important<br />
role in an era of judicial activism,<br />
public interest litigation, affirmative<br />
action through courts and a wideranging<br />
exercise of judicial review<br />
for which the Indian judiciary is<br />
being hailed throughout the world.<br />
In the very first essay in the book,<br />
law and life, the author philosophically<br />
points out that life, from its primitive<br />
days down to its international<br />
amplitude of today, has marched<br />
through the centuries according to<br />
laws accepted at one time by each<br />
community and rejected by it when it<br />
has ceased to be an instrument of<br />
progress. "What is life vis-à-vis law,<br />
so that we may understand the social<br />
dynamics which brings one into<br />
fruitful relation with the other? The<br />
role of the rule of law in our time and<br />
society is an absorbing and exciting<br />
study for lawyers and reformers … it<br />
is clear that unless a community lives<br />
under a rule of law it will tend to be<br />
lawless, to have no rule, and that<br />
means an anarchical way of subsisting.<br />
So the rule of law has to be there<br />
to bind a community and to preserve,<br />
and maintain the rule of law<br />
seems to be synonymous with the<br />
maintenance of civilised existence."<br />
At the end of the article, Justice Iyer<br />
argues that the law must serve life.<br />
In the next chapter, are judges a<br />
rare class above public servants?, Justice<br />
Iyer opines that we need judges who<br />
are trained for the job, whose conduct<br />
can be freely criticised and is<br />
subject to investigation by a judicial<br />
performance commission; judges<br />
who abandon wings, gowns and<br />
unnecessary linguistic legalisms;<br />
judges who welcome rather than<br />
shun publicity for their activities.<br />
In the chapter, people's access to<br />
judicial process …, Justice Iyer elucidates<br />
that the basic structure of the<br />
feudal Indian legal system with its<br />
dated, diehard methodology, still<br />
smacks of fossil features and colonial<br />
curial culture. Its substantive and<br />
procedural features are conditioned<br />
by Victorian vintage values. Our<br />
Constitution on the other hand, envisions<br />
a radiant socio-economic scenario<br />
and forward-looking forensic<br />
infrastructure so that its creative mission<br />
may functionally fulfil the fun-<br />
88<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
WORDS & IMAGES<br />
damental rights and egalitarian aspirations<br />
of the vast population, which<br />
is even now, governed by an arcane<br />
establishment whose survival after<br />
death is incongruous with the socialist<br />
secular democratic developmental<br />
order, which is our swaraj objective.<br />
The revolutionary tryst with<br />
destiny 'we, the people of India'<br />
made on gaining independence<br />
remains a tragic illusion and irony of<br />
jural magniloquence.<br />
In the chapter, …some creative<br />
mutations…, he candidly says that<br />
corruption, in its various dimensions,<br />
has consumed the country's<br />
integrity and ability; while in the<br />
chapter … saga of justice, justices and<br />
justicing, Justice Iyer laments that<br />
arrears of pending cases are astronomical<br />
in number, eroding people's<br />
credibility in the judiciary. Litigation<br />
is now a terror and horror, never<br />
final, ever perennial, bankrupting<br />
both sides, shocking and shaming<br />
socio-economic egalite.<br />
In an important chapter like law<br />
and justice at the subordinate court<br />
level, he observes that … drafting of<br />
law has become an art of making law<br />
riddlesome and enigmatic. Plain language<br />
is somehow alien to statutory<br />
diction. The courts, civil and criminal,<br />
are reputed to endow disposals<br />
with long life, laxity, and needless<br />
artificiality … on the whole, a revolutionary<br />
transformation in <strong>Law</strong><br />
India, procedurally and substantively<br />
is the urgent desideratum, if<br />
access to justice through courts and<br />
tribunals is to be factum of judicial<br />
veracity. Justice, justices, and justicing<br />
are too fundamental to be a riddle<br />
wrapped in a mystery inside an<br />
enigma. In the chapter, …some inconvenient<br />
truth, Justice Iyer says that …<br />
the problems of justice, justicing and<br />
justices are, as adapted to the judiciary,<br />
Parkinson's <strong>Law</strong>, Peter<br />
Principle, pathological precipitancy<br />
and pachydermic procrastination in<br />
the judicial process, indifferent to<br />
the appalling areas of cases at every<br />
stage of the system. Money, big<br />
money gains visa to the Everest<br />
justice…<br />
And so on so forth, the whole<br />
book makes interesting reading.<br />
And in the end, chapters like<br />
poignant autobiographical page throw<br />
some light on the lighter and personal<br />
side of his dedicated life. ■<br />
UNIVERSAL LAW<br />
PUBLISHING COMPANY<br />
PVT LTD, DELHI<br />
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Vol I & II<br />
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<strong>Law</strong>yers' Fitness<br />
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www.combatlaw.org 89
WORDS & IMAGES<br />
Narrating evolution of Indian politics<br />
In a succinct account suitably peppered with anecdotes, V Krishna Ananth's<br />
book is an attempt to fill an important space -- a journalistic, non-academic<br />
pedagogical narrative for students who wish to explore the contours of the<br />
evolution of politics in independent India<br />
Hormazd Mehta<br />
The idea of India as a nation that<br />
the mainstream media peddles<br />
has its roots in the events that<br />
have helped to shape the political<br />
consciousness of the country since<br />
the advent of the freedom struggle,<br />
especially post independence. It is<br />
telling to note that while the eighteen<br />
years since liberalisation have come<br />
to be valourised, there appears to be<br />
a political vacuum concerning the<br />
first forty-two years of Indian independence<br />
which came to be associated<br />
with Nehruvian socialism and<br />
thus suitably stigmatised by the high<br />
priests of the current dispensation.<br />
It is in this context that the author,<br />
V Krishna Ananth, posits this historiographical<br />
account of Indian politics.<br />
In a succinct account suitably peppered<br />
with anecdotes, the author has<br />
attempted to fill an important space -<br />
- a journalistic, non-academic pedagogical<br />
narrative for students who<br />
wish to explore the contours of the<br />
evolution of politics in independent<br />
India. While the book is not exhaustive<br />
on the tumultuous politics of a<br />
postcolonial country racked by conflicting<br />
interests of various groups, it<br />
does offer a very tantalising perspective<br />
on the dominant structures of<br />
power which lorded over the country<br />
post-Independence.<br />
It would be inappropriate to state<br />
this book propounds political determinism.<br />
The author's views and<br />
scholarship from multiple vantage<br />
points enlarge the perspectives on<br />
offer as well as the intrigue that the<br />
book generates in the reader - especially<br />
those treading their first steps<br />
in this subject. The dominant structures<br />
of power and the institutions<br />
they control exert their hegemonic<br />
influence - a fact that explicitly shows<br />
itself in the functioning of what constitutes<br />
the Indian State today.<br />
India Since Independence… also<br />
Title: India Since<br />
Independence:<br />
Making Sense<br />
of Indian Politics<br />
Author: V. Krishna Ananth<br />
Publisher: Pearson Education,<br />
New Delhi<br />
Price: Rs. 750/-<br />
BOOK REVIEW<br />
focuses its attention on the political<br />
economy of India and the role that<br />
the collusion of interests along with<br />
the co-optation of power groups<br />
played in keeping the hegemonic<br />
powers of the Congress party in<br />
power for the first quarter of a century<br />
at the centre. It also exposes the<br />
convenience with which people and<br />
issues are dealt with and disposed off<br />
by the strong unitary state.<br />
The working of the Congress party<br />
is fleshed out with clarity and the<br />
assertion of the other backward classes<br />
is also dealt with substantially.<br />
However, it is a matter of disappointment<br />
that the rise of Dalit platforms<br />
and communal carriages has not been<br />
effectively dealt with. Each communal<br />
party has used its own Herodotus to<br />
redefine history as is best suited to its<br />
vested interest and this perspective is<br />
vital in informing the student about<br />
the creation of a supposedly shared<br />
experience. The rise of Dalit and adivasi<br />
political parties and platforms is<br />
not discussed with sufficient content<br />
to merit an understanding.<br />
The author has dealt with the<br />
idea of India as conceptualised during<br />
the freedom struggle and the<br />
State that actually materialised at<br />
length. This is very important if one<br />
wishes to understand the current trajectory<br />
the Indian state and its governments<br />
are following in the economic<br />
and political spheres. If one is<br />
to peruse the chapters which deal<br />
with this, one will clearly realise<br />
what Nehruvian socialism came to<br />
embody. A conjuncture of hegemonic<br />
agendas set the tone for the building<br />
of a nation under Nehru and one that<br />
would serve the interests of his loyalists<br />
and supporters with minimal<br />
fuss. It helped Nehru no small<br />
amount that his largest supporters<br />
were the incipient Indian capitalist<br />
classes which ensured that while<br />
Nehru had his rhetoric, they had a<br />
market to exploit.<br />
It is in this frame that one should<br />
view the working of the Indian state<br />
in the current context of liberalisation.<br />
As the political leaders and<br />
statesmen of today are not worthy of<br />
comparison to Nehru and therefore<br />
unable of introspection, one can only<br />
hope that they witness the destruction<br />
caused by their actions and<br />
ensure that the ruptures and fissures<br />
in society do not become the sufficient<br />
condition for the disintegration<br />
of a hastily cobbled country housing<br />
elements ranging from the feudal to<br />
the modern.<br />
On a slightly different note, pricing<br />
the book lower would help bring<br />
it within the reach of a larger number<br />
of students who would definitely<br />
find the book of immense interest as<br />
an initiation into the world on Indian<br />
politics.<br />
–The reviewer is a student at the<br />
Tata Institute of Social Sciences completing<br />
Masters in Development Studies<br />
90<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
Audience-Citizens, the Media,<br />
Public Knowledge and<br />
Interpretative Practice, published<br />
by SAGE Publications India,<br />
questions the bio-directional interplay<br />
between the interpretations of<br />
the media and its target audience.<br />
Specifically, the author, Ramaswami<br />
Harindranath -- an Associate<br />
Professor in the Media and<br />
Communications Programme at the<br />
School of Culture and<br />
Communication, The University of<br />
Melbourne, Australia -- investigates<br />
the correlation between how the<br />
media is interpreted as well as mediated<br />
by the audience's 'understanding',<br />
'social context', and the 'genre' of<br />
media itself.<br />
In nine heavily worded and references<br />
infused chapters, the author<br />
outlines various theoretical frameworks<br />
where research and theory has<br />
investigated the varying factors that<br />
effect one's interpretation of the<br />
media. Through a labyrinth of criticisms<br />
and linear thought,<br />
Harindranath presents a study conducted<br />
by him in an attempt to<br />
bridge the gap in media and audience<br />
interpretation research which is<br />
based on previous research and theory<br />
caveats.<br />
The author thus proposes moving<br />
away from ill-defined concepts and<br />
holistic approaches, and turn to<br />
explore those specific factors that<br />
affect one's interpretation of the<br />
media. In particular, the author provides<br />
a compelling argument for the<br />
necessity to investigate the audience's<br />
underlying cognitive processes<br />
(understanding), life experiences,<br />
culture, and beliefs (social context),<br />
and the actual content of the media<br />
(genre).<br />
The chapter on 'understanding'<br />
concerns research and theories touching<br />
upon epistemological based<br />
questions of the relationship between<br />
'understanding' and factors such as<br />
semantics, language, and cognition.<br />
The chapter dedicated to 'social context'<br />
explores the context and culture<br />
in which an individual lives and how<br />
that context influences cognition and<br />
in turn, media interpretation.<br />
The chapter on 'genre' is dominated<br />
by the author's choice of using<br />
film documentaries as the 'genre'<br />
aspect of his theory. He questions<br />
how audiences reach a conclusion<br />
that a documentary is believed to<br />
represent the true world we live in, or<br />
a fictional depiction of the world in<br />
the context of how we understand it.<br />
In this section, various factors that<br />
influence the overall authenticity of a<br />
'genre' are analysed including music,<br />
photography, and the perception of<br />
truth within a film documentary. The<br />
author intertwines these three concepts<br />
in a strong and linear progression.<br />
The use of rhetorical questions<br />
and real life applications keeps the<br />
reader's mind active and engaged.<br />
The author is constantly evaluating<br />
his own theory and thoughts, for<br />
example he uses the 'Indian culture'<br />
as a prime example of various subcultures<br />
existing within the overall<br />
bracket of 'Indian'. These branches of<br />
culture are based on factors such as<br />
religion, language, and other social<br />
constructs. The author thus recognises<br />
that when interpreting the media,<br />
one cannot generalise that the 'understanding'<br />
of audiences within a single<br />
'social context' is the same as that<br />
throughout a labelled culture such as<br />
'Indian' or 'Western'.<br />
The philosophical and empirical<br />
approach taken by the author results<br />
WORDS & IMAGES<br />
Interpreting the Interpretation<br />
The book presents interplay of concepts like 'social<br />
context', 'understanding', and varying forms of 'genre'<br />
when assessing the media-audience correlation.<br />
Ramaswami Harindranath's book is an interesting<br />
attempt to bridge the gap in media and audience<br />
interpretation research<br />
Rosie Rogers<br />
Title:<br />
Author:<br />
Audience-Citizens<br />
Ramaswami<br />
Harindranath<br />
Publisher: SAGE, New Delhi<br />
Price: Rs. 495, Pp. 275<br />
BOOK REVIEW<br />
in a well-defined research hypothesis<br />
in which he aimed to 'compare the<br />
interpretations of documentaries by<br />
British and Indian audiences'. The<br />
research carried out by the author<br />
works on the assumption that those<br />
who are geographically dissimilar<br />
are also culturally dissimilar, with<br />
the British and Indian as the chosen<br />
audience populations.<br />
However, differences were found<br />
not between cultures, but within the<br />
Indian culture. This qualitative<br />
approach found that Indian nongraduates<br />
perceived the documentaries<br />
to be 99-100 percent factual<br />
whilst the educated British and<br />
Indian respondents had more sceptical<br />
views on the documentaries'<br />
validity and often stated they had a<br />
fictional skews. The author offers an<br />
explanation with varying 'traditions'<br />
and levels of education within the<br />
Indian audience accounting for the<br />
heterogeneous interpretations of the<br />
documentaries.<br />
Granted one would not take this<br />
book on a holiday for a leisure reading,<br />
as the author admits, using 'theoretically<br />
complex arguments'.<br />
However, these arguments are clear<br />
and necessary to the overall message<br />
that when analysing the media and<br />
audience relationship, theorists<br />
should consider a hermeneutic<br />
approach, which is concentrated on<br />
investigating meanings. This could<br />
be done by asking questions of how<br />
and why rather than if and when. In<br />
an attempt to investigate the variety<br />
of influences of the media, the book<br />
encourages the reader to introspect<br />
on issues of culture, self-identity, and<br />
the effects of the media; questions<br />
that we should all consider.<br />
–The reviewer has been an intern<br />
with the HRLN in New Delhi<br />
www.combatlaw.org 91
WORDS & IMAGES<br />
Capturing systemic<br />
violence against Dalits<br />
A powerful account of the plight of the 'untouchables', this<br />
documentary exposes daily violence against Dalits. It is a<br />
moving narrative of systemic violation of the fundamental<br />
rights of the Dalits in a society where centuries old caste<br />
prejudices continue determining social, economic and<br />
political reality of millions Keya Advani<br />
The Others is an hour-long documentary<br />
film, exploring the<br />
marginalisation of Dalits<br />
through the personal testimonies of<br />
victims of caste-based violence.<br />
Documenting numerous incidents of<br />
oppression, the film demonstrates<br />
how the State and the judiciary are<br />
complicit in creating a systematic<br />
structure of violence, discrimination<br />
and oppression that targets Dalit<br />
communities. Refuting the rhetoric of<br />
urban, middleclass India that<br />
casteism is a thing of the past, The<br />
Others, produced by Harsh Dobhal<br />
for HRLN and directed by Shahid<br />
Jamal, showcases how anti-Dalit violence<br />
is all-pervasive and is not just<br />
condoned, but is actively upheld by<br />
educated, urbane populations.<br />
Avoiding a flattened rhetoric of pure<br />
oppression, however, the documentary<br />
also explores the avenues of<br />
resistance that have emerged from<br />
within Dalit communities against<br />
upper-caste domination.<br />
The film begins by locating Dalit<br />
activism within an Ambedkarite ideology<br />
that actively rejects Hindu<br />
gods such as Rama, Krishna, Vishnu,<br />
Ganesha as well as Hindu ritualistic<br />
practices like Pind Daan and instead,<br />
embraces a philosophy of life rooted<br />
in Bhaudhha-Dharma. It also emphasises<br />
the rejection of terms like<br />
'Harijan' and their replacement by<br />
the word 'Dalit', a word that encompasses<br />
not only oppression but also<br />
a conscious resistance to that<br />
oppression.<br />
The documentary traverses<br />
through victims' testimonies; it<br />
explores how the same issue–violence<br />
against Dalits–is replicated in<br />
each Indian state in different ways.<br />
As we are exposed to story after<br />
story, the role of the police in sanctioning<br />
anti-Dalit violence becomes<br />
increasingly evident. For example, as<br />
the camera surveys the broken and<br />
charred remains of a house in<br />
Haryana, its Dalit occupants testify<br />
that their newly built home was<br />
demolished by the upper-castes in<br />
the village and their jewelry looted,<br />
because their relative wealth was an<br />
affront to the dominant caste-hierarchy.<br />
Meanwhile, the police stood by<br />
and watched and have subsequently<br />
refused to file an FIR. We meet a couple<br />
from a small village in Kerala<br />
who were arrested by the police on<br />
false charges, beaten brutally, and<br />
now continue to be harassed on a<br />
regular basis by police constables.<br />
The residents of a village in<br />
Rajasthan narrate how the uppercastes<br />
deliberately pollute their wells<br />
and water sources by dumping<br />
human excreta in them. Instead of<br />
taking action, the police have told<br />
them that they should filter and<br />
drink the same water.<br />
The virulent anti-Dalit mentality<br />
of highly educated individuals had<br />
become shockingly evident during<br />
the Mandal Commission protests of<br />
the 1990s. The Others explores the<br />
Interspersed with the victims'<br />
accounts, interviews with<br />
lawyers and activists working<br />
throughout the country, the<br />
film makes it increasingly clear<br />
that the judiciary is not playing<br />
an adequate role in combating<br />
caste violence<br />
92<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
WORDS & IMAGES<br />
Title: The Others<br />
(An HRLN film)<br />
Duration: One hour approx<br />
Produced by: Harsh Dobhal<br />
Directed by: Shahid Jamal<br />
Supported by: European Union<br />
pervasiveness of this mentality<br />
amongst the educated elite today,<br />
through interviews with Dalit students<br />
at some of the most prestigious<br />
medical and management colleges in<br />
Delhi. Dalit students are routinely<br />
socially isolated, and experience<br />
more severe forms of ragging than<br />
non-Dalit students. They are often<br />
targeted by members of the faculty<br />
and told they should switch to 'less<br />
demanding' specialties than<br />
medicine and management. Their<br />
testimonies make it clear that castebased<br />
discrimination is extremely<br />
prominent amongst a young, urban,<br />
educated populace.<br />
The specific targeting of Dalit<br />
women is often a symbolic act that<br />
maintains caste hierarchy by making<br />
the woman's body a site of violent<br />
domination by an upper-caste perpetrator.<br />
The Others highlights this phenomenon<br />
through the testimonies of<br />
victims of rape, especially in the<br />
states of Haryana and Punjab. The<br />
particularly horrific incident of the<br />
rape of a young girl was made worse<br />
by the police's attempt to make the<br />
crime seem less heinous than it was,<br />
by arguing that the victim was over<br />
eighteen and therefore not a minor.<br />
Although the documentary lacks an<br />
analysis of the structures of power<br />
that triply marginalise Dalit women<br />
on account of their caste, class, as well<br />
as their gender, it provides an insight<br />
into the violence that Dalit women<br />
face, on account of being women.<br />
Interspersed with the victims'<br />
accounts, interviews with lawyers<br />
and activists working throughout the<br />
country, the film makes it increasingly<br />
clear that the judiciary is not playing<br />
an adequate role in combating<br />
caste violence. Only about three percent<br />
of the perpetrators of caste violence<br />
are convicted. As Dalits are<br />
often excluded from systems of education,<br />
they are also excluded from<br />
the judiciary. The result is a judicial<br />
system that has taken neither adequate<br />
preventative nor curative measures<br />
to combat caste-based violence<br />
and discrimination.<br />
The Others is not, however, a mere<br />
account of destitution and oppression.<br />
Rather, it also explores the multifarious<br />
forms of resistance that have<br />
emerged in opposition to casteism. It<br />
recounts forms of violent resistance,<br />
as in the case of Nagpur in 2003<br />
when women threw chilly powder<br />
and beat to death an upper-caste<br />
rapist, who they feared would be<br />
acquitted by an inherently biased<br />
judiciary. In another instance, in<br />
Khairlanji in Maharashtra, violent<br />
protests erupted after a Dalit family<br />
was raped and beaten to death, forcing<br />
a statement of condemnation<br />
from Ms. Sonia Gandhi. However,<br />
not all protests have been violent. In<br />
another region of Maharashtra, the<br />
National Ambedkarite Guard (NAG)<br />
mobilises Dalits and develops leadership<br />
amongst Dalit youth so that a<br />
democratic, non-violent means of<br />
dealing with atrocities against Dalits<br />
becomes possible. In Southern<br />
Kerala, a mass movement of Dalits<br />
has taken a passive resistive<br />
approach, asking only that upper<br />
caste landlords do not illegally<br />
appropriate their lands.<br />
Although The Others lacks an analytical<br />
approach, it is a hard-hitting<br />
account of the pervasiveness of castebased<br />
violence and discrimination in<br />
the contemporary Indian context.<br />
However, through the stories and<br />
experiences of real people, it provides<br />
a clear and emotive account of<br />
the routine and systematic violation<br />
of the fundamental rights of a huge<br />
section of India's population.<br />
– The reviewer is with the<br />
Women Justice Initiative at HRLN<br />
www.combatlaw.org<br />
93
OBITUARY<br />
June 10, 1952–Oct 8, 2009<br />
A Tribute to<br />
people's advocate<br />
Balagopal<br />
Dr K Balagopal, who stood in defiance<br />
before the State to uphold<br />
human rights and made police<br />
encounters look like acts of crime<br />
rather than bravado, death came at<br />
an early age of 57. The noted activistlawyer<br />
died of a heart attack at a private<br />
hospital in Hyderabad on<br />
October 8, 2009.<br />
A brilliant mathematician,<br />
Balagopal gave up a career as a lecturer<br />
at the Kakatiya University in<br />
Warangal district of Andhra Pradesh<br />
to study law and become a human<br />
rights lawyer. Since 1990 he took up<br />
more than 200 cases of encounter<br />
killings and founded the Human<br />
Rights Forum in Andhra Pradesh in<br />
1998. Known to be a hardcore<br />
Marxist, Balagopal hated Maoist violence<br />
as much as he was against<br />
police encounters. His public criticism<br />
of the acts of violence by<br />
Maoists attracted severe criticism<br />
from the Naxalites, but that did not<br />
prevent him from fighting for the<br />
rights of Maoists as well as the poor.<br />
He broke away from the Andhra<br />
Pradesh Civil Liberties Committee<br />
(APCLC) after being associated with<br />
it for many years because of the violent<br />
methods of the former CPI-ML<br />
People's War.<br />
In an article on moving the debate<br />
beyond the terms set by the binaries<br />
of violence and non-violence,<br />
Balagopal had argued, "To say that<br />
one should not be dogmatic about<br />
violence may be morally a little<br />
unsettling but it is a defensible position<br />
even without adopting a relativistic<br />
attitude towards the preciousness<br />
of life or a casual attitude<br />
towards one's moral responsibility<br />
for injury caused in the course of<br />
a struggle."<br />
Balagopal served as a member of<br />
the expert group on development<br />
challenges in extremist affected areas,<br />
set up by the Planning Commission<br />
of India in 2008. For many, the manner<br />
in which he lived his life was as<br />
important as what he said: "I am like<br />
a moral compass that you turned to,<br />
to check your own political orientation<br />
and direction."<br />
His civil rights work acquired<br />
great visibility in the early 80s, when<br />
he held the post of general secretary<br />
of the APCLC. During those years of<br />
the 'long knives' and draconian laws,<br />
Balagopal faced threats to his life,<br />
was kidnapped by a vigilante group<br />
widely believed to be linked to the<br />
state police, arrested on a trumpedup<br />
charge of murdering a sub-inspector<br />
and so on. He survived all that<br />
and during the end of that period,<br />
around the mid-90s, began to write of<br />
the importance of thinking about<br />
rights violations in a broader and<br />
more expansive context.<br />
His extremely sharp analytical<br />
articles that appeared regularly in<br />
Economic and Political Weekly included<br />
issues ranging from the regime of<br />
Indira Gandhi, reservations issue,<br />
human rights violations from time to<br />
time in different places, the Gujarat<br />
riots, special economic zones, land<br />
acquisition, to sub-categorisation of<br />
scheduled castes in Andhra Pradesh,<br />
the failure of talks between the YSR<br />
government and the CPI-Maoists<br />
and so on. His Telugu essay 'Cheekati<br />
Konaalu' was a path-breaking one, in<br />
which he directly questioned the violation<br />
of human rights by those who<br />
claimed that they were working for a<br />
radical revolution.<br />
After the formation of Human<br />
Rights Forum, Balagopal expanded<br />
his activities and visited areas undergoing<br />
intense social turmoil in<br />
Jammu and Kashmir, Gujarat, West<br />
Bengal and Orissa. In Orissa, his factfinding<br />
teams visited Jagatsinghpur<br />
district in respect of people affected<br />
by proposed Posco steel plant and<br />
Kandhamal district, which was<br />
affected by communal and ethnic<br />
clashes in 2007-2008.<br />
In an interview with Janam Saxi,<br />
Balagopal remarked, "The Indian<br />
Constitution has had a habit, right<br />
from its inception, to destroy democratic<br />
values completely in practice<br />
without any recourse to laws. This<br />
has grown very much recently. The<br />
apparatus of the police is the chief<br />
machinery for this destruction. The<br />
duty to safeguard democratic values<br />
from these limitations is a very<br />
important duty. While performing<br />
this duty it is of no use to ask the<br />
question in this form: is there or is<br />
there not at least a bourgeoisie type<br />
of democracy."<br />
And this is how perhaps<br />
Balagopal would like to be remembered<br />
as one who was committed to<br />
radical popular protest, who at all<br />
times wished to examine the ethics of<br />
such protests, wanting to constantly<br />
test precept against practice as well<br />
as the other way around. ■<br />
94<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009
OBITUARY<br />
Remembering<br />
Prabhash Joshi<br />
Jul 15, 1937–Nov 5, 2009<br />
The emergence of a new daily,<br />
Jansatta, under Prabhash Joshi<br />
was a significant occurrence in<br />
eighties. Within a very short span of<br />
time, Jansatta left behind several<br />
Hindi newspapers. The most important<br />
thing the newspaper brought in<br />
was a paradigm shift in the language<br />
of Hindi journalism. It was refreshingly<br />
a language -- vox-populi -- and<br />
Prabhash Joshi was a master craftsman.<br />
Whether writing on cricket or<br />
politics, Joshi's idioms and terms left<br />
the reader wondering and asking for<br />
more.<br />
In 1984, Prime Minister Indira<br />
Gandhi was assassinated and Delhi<br />
witnessed the worst ever massacre of<br />
Sikhs in the streets. It was a horrific<br />
moment for everybody who thought<br />
whether India as a nation would survive<br />
at all. The human rights groups<br />
were crying for justice for the families<br />
and kin of Sikhs killed in the massacre.<br />
In such a scenario, the newspapers<br />
of the Indian Express Group<br />
including Jansatta provided them the<br />
platform and carried stories about<br />
their woes. The Group even started a<br />
series of articles to save Kehar Singh<br />
and Balwant Singh from hanging.<br />
Besides, the media Group had<br />
launched a campaign for probity in<br />
public life and wholeheartedly supported<br />
the income tax raids on the<br />
bigwig business houses. Soon after<br />
VP Singh was shunted out of the<br />
finance ministry, the income tax<br />
sleuths raided the Indian Express<br />
offices all over the country. Those<br />
were days of Rajiv Gandhi's regime.<br />
Along with Arun Shourie,<br />
Prabhash Joshi spearheaded the campaign<br />
against Rajiv Gandhi's regime.<br />
Post-Bofors, the Congress party used<br />
media in a blatant manner to politically<br />
assassinate VP Singh who was<br />
posing a threat to Rajiv Gandhi. In<br />
the meanwhile, The Telegraph 'broke' a<br />
story of VP Singh's account in St<br />
Kitts. It is a crude example of how<br />
news was being created in the national<br />
capital with country's senior journalists<br />
sitting in the headquarters of<br />
Congress party.<br />
In the meanwhile Jansatta continued<br />
to be the voice of intelligentsia.<br />
Prabhash Joshi was writing on politics,<br />
cricket and all the major issues<br />
even as he created a team of young<br />
scribes. Though Joshi himself was<br />
anti-Mandal once upon a time, he had<br />
the courage to publish articles in support<br />
of the recommendations of the<br />
Mandal Commission as a majority of<br />
writers in Jansatta came from the<br />
Socialist leaning. A large number of<br />
readers wrote angry mails to him condemning<br />
his position, yet he got them<br />
published in the form of an article<br />
named as jaat pe naa jao meri baat pe aao.<br />
Joshi's finest hours in journalism<br />
came in early nineties. After the<br />
demolition of Babri Mosque on<br />
December 6, 1992, Jansatta was perhaps<br />
the only paper which became<br />
the biggest voice of the secular forces<br />
apart from Vinod Mehta's The<br />
Pioneer. Joshi wrote against the Sangh<br />
Parivar and all those journalists who<br />
joined the saffron brigade. Only a<br />
few others had the courage to call<br />
those who demolished the Babri<br />
Mosque as 'terrorists'. Joshi felt that<br />
RSS and other members of the Sangh<br />
Parivar did not represent the Hindu<br />
view of life. He wrote Hindu hone ka<br />
dard which many of his media friends<br />
describe as one of the finest books in<br />
recent years on the growth of Hindu<br />
fundamentalism.<br />
In recent years, Prabhash Joshi<br />
was more and more interacting with<br />
communities. He had closely associated<br />
with late Prime Minister VP<br />
Singh and social movements against<br />
WTO, SEZs, land acquisitions and<br />
media manipulations by the industrial<br />
houses. He had been travelling a<br />
lot and his voice mattered a lot in<br />
these matters. Among the present<br />
day journalists he was the only hand<br />
who could write with authority on<br />
the issue of land acquisition. In fact,<br />
despite the shrinking market of<br />
Jansatta, it never compromised with<br />
quality of content.<br />
Prabhash Joshi considered himself<br />
a puritan Brahmin but was concerned<br />
about the growing communal situation<br />
in the country and continuous<br />
assault on our natural resources. One<br />
might have disagreed with his views<br />
on Sanatan dharma and 'liberal' values<br />
of Hinduism but as an editor he was<br />
extraordinary. In his thoughts, Joshi<br />
did not come close to his contemporary<br />
Rajendra Mathur, who was highly<br />
talented and much stronger on ideological<br />
side, yet Joshi was far more<br />
ahead in interaction with people and<br />
making Jansatta a 'people friendly'<br />
newspaper. He was a journalist with a<br />
mission despite the fact that many of<br />
his contemporaries had compromised.<br />
While several journalists'<br />
hatred grew against Dalits, Christians<br />
and Muslims, Joshi never used vulgar<br />
language like them.<br />
In his last important intervention,<br />
Joshi wrote against selling of space in<br />
media. He has been touring all over<br />
the country on the issue. He would<br />
always write his column in Jansatta<br />
and every Sunday people would wait<br />
for his column. And definitely he<br />
changed the way how cricket was<br />
reported. His narration of cricket<br />
matches were the finest as the<br />
description had the sweet fragrance<br />
of 'Malwa'. He was always in touch<br />
with his roots and felt proud of it.<br />
The biggest contribution of Joshi<br />
to the Indian media is its secular<br />
character, its freedom of ideas, creation<br />
of a few professionals who are<br />
now everywhere in media and developing<br />
a language which changed the<br />
spectrum of Hindi media and forced<br />
those in power to give respect to vernacular<br />
viewpoints and most importantly<br />
in the age of marketing where<br />
everything is a product fixed by the<br />
market.<br />
–Vidya Bhushan Rawat, the<br />
author, is an activist-journalist<br />
www.combatlaw.org 95
OBITUARY<br />
Prof Iqbal Ansari<br />
1935–Oct 13, 2009<br />
On evening of October 11, 2009,<br />
Prof Iqbal A Ansari was sitting<br />
next to me in a meeting in Delhi, at<br />
that time I had no clue that I will not<br />
be able to meet him again. In fact, it's<br />
still unbelievable to me that he is no<br />
more among us. His untimely death<br />
left most of us bewildered. It is an<br />
irreparable loss for human and civil<br />
rights' movements in India. Prof.<br />
Ansari, who was always at the forefront<br />
of the human rights and civil<br />
movements for more than two<br />
decades left this world on October 13,<br />
2009 following a heart attack.<br />
My association with Prof Ansari is<br />
not very long and dates back to 2007,<br />
when I assisted him to organise a<br />
consultation meeting on 'Towards<br />
Riot & Terror Free India' in collaboration<br />
with the Inter Community Peace<br />
Initiative (ICPI) in Delhi. After that, I<br />
interacted with Ansari on various<br />
occasions and issues, mostly through<br />
phone and internet. He was very<br />
prompt in his responses. Whatever I<br />
got to know about him through my<br />
short interactions and his works, one<br />
thing that really influenced me was<br />
his unmatched commitment for protection<br />
of civil liberties and advancement<br />
of human rights in India. He<br />
was committed for the cause up to<br />
the level of passion.<br />
He was one of the most visible<br />
civil liberties' activists in India taking<br />
up a variety of issues -- from communalism,<br />
religious freedom and communal<br />
harmony to minority rights.<br />
From being a teacher of English literature<br />
turned into a full time human<br />
rights' activist, Prof Ansari along<br />
with other well-known civil libertarians<br />
like VM Tarkunde and Justice<br />
Rajendra Sachchar, championed for<br />
A tireless defender<br />
of human rights<br />
the protection of civil rights in India.<br />
Born in 1935, Iqbal A Ansari<br />
served as a teacher of English at the<br />
Aligarh Muslim University, Aligarh<br />
(AMU) for 33 years and retired as<br />
professor of English in 1995. He was<br />
also a visiting faculty at Centre for<br />
Federal Studies, Jamia Hamdard<br />
(2001-2003) and Jamia Millia Islamia,<br />
New Delhi (2003-2004). Prof Ansari<br />
was associated closely with several<br />
international and national human<br />
rights organisations in different<br />
capacities. He was also member of<br />
Amnesty International, National<br />
Council member of Peoples' Union<br />
for Civil Liberties (PUCL), vice president<br />
of Citizens for Democracy<br />
(CFD) and general secretary of<br />
Minorities' Council. Most recently, he<br />
was active with the Citizens'<br />
Initiative for Peace, a newly formed<br />
group comprising people like Justice<br />
Rajendra Sachchar, Prof Randhir<br />
Singh, Kuldip Naiyyar, Swami<br />
Agnivesh, Nanadani Sunder and<br />
Kavita Srivastava. He was also<br />
editor of the quarterly bulletin,<br />
Human Rights Today published from<br />
New Delhi.<br />
Prof Ansari was a prolific writer<br />
and his articles found spaces in most<br />
of national English dailies. He had<br />
written extensively on issues related<br />
to human rights, minorities and prevention<br />
and resolution of inter-community<br />
conflicts. Many of his publications<br />
include Political Representation<br />
of Muslims in India (2006), Readings<br />
on Minorities: Perspectives and<br />
Documents, Vol I & II (1196), Vol III<br />
(2002); Communal Riots: The State and<br />
<strong>Law</strong> in India (1997); Human Rights in<br />
India: Some Issues (1998); Muslim<br />
Situation in India (1989); and Uses of<br />
English (1978). Before his sad demise,<br />
he was working on the issue of religious<br />
freedom and was involved in<br />
compiling a book on it.<br />
Prof Ansari, in his capacity as an<br />
active social worker, had crisscrossed<br />
the country to advance<br />
human rights and to expose their violations<br />
besides the illegal activities of<br />
both the state and non-state perpetrators.<br />
It was Prof. Anasri's keen interest<br />
and constant efforts in the matters<br />
related to victims of communal violence<br />
in Hashimpura and Maliyana<br />
areas of Uttar Pradesh which resulted<br />
in the transfer of cases from UP to<br />
Delhi. Nonetheless, he made a<br />
remarkable intervention in the form<br />
of a critical analysis of the proposed<br />
Communal Violence (Prevention,<br />
Control and Rehabilitation of<br />
Victims) Bill, 2005. One of his last but<br />
significant contributions to the protection<br />
and advancement of civil liberties<br />
in India was his intervention on<br />
Supreme Court judge Justice<br />
Markandeya Katju's remarks on<br />
beard growing. He personally wrote<br />
to him and argued the matter.<br />
Prof Iqbal Ansari was a selfless<br />
intellectual, tireless human rights'<br />
defender and a great human being. It<br />
is a harsh reality that he is no more<br />
amongst us but his legacy in terms of<br />
his works and brave struggles will<br />
continue to inspire us to keep on our<br />
struggle for the establishment of a<br />
just and equitable society. Our real<br />
tribute and homage to him will be to<br />
carry forward his pioneering work<br />
and celebrate his greatness.<br />
–Mahtab Alam, the author,<br />
is a Delhi-based civil<br />
rights activist<br />
Printed and published by Socio Legal Information Centre having its office at 576, Masjid Road, Jangpura,<br />
New Delhi-110014, Printed at Shivam Sundaram, E-9 Green Park Extension, New Delhi-110016<br />
96<br />
COMBAT LAW SEPTEMBER-DECEMBER 2009