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VOLUME 8 ISSUE 5&6 SEPTEMBER-DECEMBER 2009
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THE HUMAN RIGHTS & LAW BIMONTHLY
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Still UNTOUCHABLE
Has the legal system abandoned Dalits?
PS Krishnan I Justice Hosbet Suresh I N Paul Divakar-Abhay Kumar I Dr Anand Teltumbde
V Nandagopal I Dr Sirivella Prasad I PL Mimroth I Shubhranshu Choudhary I Thomas Becker I Kenn Larsen
COMBAT LAW
Epic Shame
SEPTEMBER-D
December 2009
VOLUME 8, ISSUE 5&6
Editor
Harsh Dobhal
Senior Associate Editor
Suresh Nautiyal
Assistant Editor
Neha Bhatnagar
Cover Illustration
Shyam Jagota
Design
Mahendra S Bora
Asstt. Director, P&D
Kamlesh S Rawat
Deputy Manager, Circulation
Hitendra Chauhan
Editorial Office
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Any written matter that is published in
the magazine can be used freely with
credits to Combat Law and the author.
In case of publication, please write to
us at the above-mentioned address.
The opinions expressed in the articles
are those of the authors.
Photo courtesy: Websites & others
uperiority and purity of race formed the polluting foundations of
Nazism which was finally defeated by the logic of time and history.
Slavery too, having had its run, was abolished. But the institution of
caste has been determining a human being’s destiny for almost as long
as India claims to be a civilisation. Till date, even the much rational,
educated citizen of India has been deriving sanction from it to exclude
and discriminate against a community, known as lower castes or ‘Dalits’,
finding themselves at the bottom of a cruel Indian caste system.
Many of them treated as untouchables, they are denied basic dignity
of life, fundamental human rights, civil liberties, rightful opportunities
to develop, advance and make informed choices in life. Violence in all its
forms is perpetrated against them – physical, psychological, cultural
and economic. Even our claim to educating them has not been able to lift
the Dalits out of their centuries of miserable conditions as much as the
education has failed to enlighten and liberate the minds of the so-called
upper castes and purge them of caste prejudices. Even today, over onesixth of India’s population, roughly some 170 million people, live a precarious existence, shunned by Indian society.
After gaining Independence, India embarked on quite a progressive
journey towards enacting a plethora of progressive legislations to uplift
various marginalised communities. With regard to Dalits, we have had
The Protection of Civil Rights Act, 1955, The Bonded Labour System
(Abolition) Act, The Child Labour (Prohibition and Regulation) Act,
1986 and the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, among others.
It has been two decades when the SC/ST (PoA) Act was passed aiming at eliminating atrocities against Dalits with provisions for protection,
compensation and rehabilitation of the victims of caste bias and punishment for perpetrators of violence. But, like all other progressive legislations, this law also has served more of a decorative purpose on paper
than giving desirable effects to the rights envisaged in the Act. The
implementation of the SC/ST (PoA) Act, due to shoddy investigations
by all pervasive upper caste mindset, remains abysmally weak even on
its 20th anniversary.
If we have a look at the available data, more than 62,000 human
rights violations are recorded against Dalits annually, with an average of
two Dalits assaulted every hour, two murdered and at least an equal
number tortured or burned every day. There are millions of SC/ST children working as child labour. About 80 to 90 percent Dalits who work as
bonded labour do so in order to pay off their debt while about an estimated 800,000 are still engaged in manual scavenging. Dalit women in
India face triple burden of caste, class and gender with an average of
three Dalit women and children raped every day.
Judiciary is generally considered to be the last ray of hope for the dispossessed and victimised. However, the conviction rate of crimes
against Dalits is abysmally low at only about 2.31% while the number
of acquittal is six times more. Over 70% cases are still pending. This is
not to suggest that the Act has not resulted in helping the cause of Dalits
but the results are far from desirable. The problem does not lie with the
law alone. Apart from social awareness and education to change the
anti-Dalit mindset, we perhaps need more teeth to the law, provisions
for a better implementation and stringent actions against violators.
This issue of Combat Law takes this as an opportunity to review the
20 years of the PoA Act, with eminent experts and activists highlighting
the shortcomings and recommending amendments to make the law
more accountable and effective in an attempt to fight against all sources
of discrimination, inequality and exclusion in pursuit of a more egalitarian social order.
S
Harsh Dobhal
C O N T E N T S
6
DALIT RIGHTS
INTERVIEW
32
"Empower Dalits for
Empowering India"
A bureaucrat-cum-crusader of Dalit cause, PS
Krishnan has always been
behind-the-scene of the
historical initiatives that
have positively impacted
millions of Dalits in India
Retrospect and Prospect
The PoA Act, now two decades old, was enacted to protect
Dalits from wanton attacks by the upper castes, but the
law has not achieved desirable results
–PS Krishnan
44
38
Right not to
be treated as
untouchable
There is an urgent need
to redraft Article 17 in
the form of a right 'right not to be treated
as an untouchable'
Khairlanji: Whither the atrocity Act?
If the justice delivery system is blind to the social reality of
caste, the entire exercise of creating the constitutional
structure and laws for protecting Dalits becomes selfdefeating
–Justice (Retd) H. Suresh
–Dr Anand Teltumbde
48
59
A neglected component
Tardy implementation in Rajasthan
In the last five years, the system has denied SCs a whopping sum of Rs 76,690 crore that should have been earmarked for them under the special component plan
The affected groups experience violence on daily basis and
the deterrence envisaged in the laws especially enacted for
this purpose is not in evidence.
–N Paul Divakar & Abhay Kumar
–PL Mimroth
2
COMBAT LAW SEPTEMBER-DECEMBER 2009
C O N T E N T S
62
DALIT RIGHTS
65
An experiential review
of SC/ST (PoA) Act
Dignity of life and equal
opportunities to Dalits are
distant dreams despite 20
years of enactment of
SC/ST (PoA) Act
Recommendations of Justice Punnaiah
Commission
The safeguards ensured by the Constitution have become
merely "proclamation of theory" in the backdrop of nonimplementation of the laws meant for Dalit upliftment
–V Nandagopal
–Imran Ali
67
PRISONERS' ABUSE
69
Dalit laws: Mere
paper tigers?
Across India, the SC/ST
(PoA) Act is operating
more in defiance than
in compliance. A
ground reality report
from Gujarat
Condemned Twice
Various forms of abuse by prison staff and other inmates
have become a common feature in the lives of those incarcerated women whose basic human rights stand violated
while they serve a sentence
–Leni Chaudhuri & Reena Mary George
A D I VA S I S
73
TRIBAL RIGHTS
76
Jharkhand's dispensable tribe
After the police firing incident on the Adivasis near
Kathikund in December 2008, the tribals want the government to cease its repression of the community and terminate the catastrophic project
–Thomas Becker
www.combatlaw.org
Lost world of Chakmas
The ancient tribe of Chakmas today desperately needs to be
uplifted from the depths it has been spurned into
–Kenn Larsen
3
C O N T E N T S
Haunting Beauty
of the Ghats
ENVIRONMENT
HIV/AIDS: HC brings
hope to many
JUDGEMENT
The book captures the
diversity of the Western
Ghats or Sahyadri even as
the volume examines the
ecological wounds caused
by the greedy
81
82
–Suresh Nautiyal
FA R M E R S ' S U I C I D E
In a landmark judgement
that has wide implications,
the Bombay HC has ordered
free of cost second line
treatment to persons living
with HIV/AIDS, thus bringing
a sigh of relief to many who
were not responding to
first-line therapy
84
VILLAGE COURTS
Speedy justice
at grassroots
83
A superficial view may
create a misconception
that the Gram Nyayalaya
and Nyaya Panchayat are
competing entities, but a
closer look shows they
are totally different in
their approach
Farmer graveyard?
On an average, four farmers
kill themselves everyday, in
this Re 1 rice land!
–Shubhranshu Choudhary
86
WORDS & IMAGES
DOMESTIC WORKERS
Domestic worker in a hostile world
88
Ending up as domestic servants, in the
absence of any legal mechanism to protect their rights they not only face harassment at the hands of their employers but
also become victims of abuse by placement agencies
–Anisha Mitra & Karelia Rajagopal
Thorny journey
to justice
Somehow off-the-track book,
"Law & Life" by Justice VR
Krishna Iyer throws light on
complex and multiple aspects
of the justice delivery system
in India
–Suresh Nautiyal
92
90
Narrating evolution
of Indian politics
91
Interpreting the
Interpretation
Capturing systemic
violence against Dalits
The book is an attempt to fill an important space -- a journalistic, non-academic
pedagogical narrative for students who
wish to explore the contours of the evolution of politics in independent India
The book presents interplay of concepts
like 'social context', 'understanding', and
varying forms of 'genre' when assessing
the media-audience correlation
The documentary is a moving narrative
of systemic violation of the rights of the
Dalits in a society where caste prejudices
continue determining social, economic
and political reality of millions
–Hormazd Mehta
–Rosie Rogers
–Keya Advani
4
L E T T E R S
Manipur is 'money put'
The role you play!
Dear editor,
In order to manipulate law, the principle of jurisprudence that a person
is presumed to be innocent till
proved guilty in a court is being
invoked to shield tainted politicians.
The presumption of innocence
relates to a routine criminal offence
and not to unbecoming conduct of a
person holding public office.
Conduct amounting to a wrongdoing justifies a prohibition from holding public office. In the case of a government servant accused of serious
misconduct he is met with suspension till his case goes through a disciplinary inquiry and later to court.
In line with this suspension from
service in case of government servants there has to be a bar to holding
public office for elected representatives till the outcome of the cases
against them is revealed. The ministers should not hold office once an
FIR is registered against them more
so a chargesheet. They will misuse
their power and authority to manipulate their trial. This is exactly what
has happened in the case of Goa
health minister Vishwajit Rane
whom Goa police claimed could not
be traced for almost two months to
serve him court summons. As
emphasised by Prime Minister Dr
Manmohan Singh the standard for
those in public life should be that not
only Caesar, but even Caesar's wife
should be above suspicion!
–Aires Rodrigues
Ribandar, Goa
www.combatlaw.org
Dear editor,
Where is the jewel of India? This
question lies in the labyrinth of injustice done to one and all in the state of
Manipur. Everyday, on an average
three men are allegedly killed in the
north-eastern state resulting close to
1,095 male deaths due to factors best
known to the deceased or the killers.
Within a span of few years, the malefemale ratio will go down so much
giving a negative trend in the
demography. The oversized female
population in Manipur has resorted
to unethical means for livelihood.
Khwairamband Bazaar, which is
overcrowded with women who
return home with few kgs of rice
each evening in a worn out jeep, is
just the tip of the iceberg. Where is
the Sanaleibak (golden land) in this
scene? The male youth in the age
group 25-38 years has to suffer a lot
in the struggle for existence. With job
giving institution becoming meagre,
a day will come when no youth
remains in Manipur as 90 percent of
them will move to other states and
undertake inhuman jobs/labour only
for the target of existence. There is no
question that girls, on the other hand
will not stay idle. One of the realistic
trends which has cropped in
Manipur is: One girl will get herself
married to a man under circumstances. She will stay for some time
and return back to her maternal
home under lie-filled pretexts. Later
when such deserted man marries
other girls, the first girl will resort to
"Izzat dabi" to the man. It won't be
wrong to mention that parents possessing daughters are making booms
of money by the above mentioned
tactics. A well known joke in
Manipur is "percentage". There is a
percentage culture right from a plate
of rice (chakluk) to a contract done
by any agency. As long as this culture
exists no planning and development
can take place. The epoch of "chahi
chatret khuntakpa" (seven hundred
devastation) has already begun. Life
filled with "Ex-gratia, Izzat Dabi",
corruptions in all spheres coupled
with "no utilisation certificates" are
the azure gems which are engraved
in this Sanaleibak- the golden land.
–Michael Khumancha
by e-mail
An eye opener Special
Dear editor,
Combat Law magazine's Special
Supplement 2009 (Fake Encounters:
How they are done) that carries the
extracts of the report of the
metropolitan magistrate, court-1 at
Ahmedabad vis-à-vis killing of
Ishrat Jehan and others, is an eye
opener not only for the judiciary but
also for media and the sane voices. It
was shocking to learn that the
accused were taken into custody
and then killed in cold blood. This
shows how crudely and bluntly our
system works. It also shows that in a
democracy like ours no stone is left
unturned to make mockery of the
democratic values, not to mention
the human rights. Our leaders talk
very loud about our democracy at
the global fora and portray India as
a secular, multi-religious and multiethnic nation with diverse value-
systems and ethos. These leaders
also want a permanent seat on the
UN Security Council. However,
question is: Can these leaders look
into their hearts first and then
talk about the human rights and
secularism?
I agree with the editorial of the
magazine that the report has scientific elements in it and truly a beacon
light for other judicial officers conducting similar enquiries.
True democracy is one of the best
forms of governance till today and in
such a system the police and security
forces should have no licence at all to
kill anybody. The laws like AFSPA
give such licences and the time is ripe
to do away with such draconian laws
at the earliest.
–Natasha N
LLB, IInd year
University of Delhi
5
DALIT RIGHTS
In their homelands
their life is a daily
struggle to be treated
with the minimum
dignity as normal
human beings - a
battle in which all
odds are stacked
against them and
which they have been
and still are losing.
The PoA Act, now two
decades old, was
enacted to protect the
SCs and STs from
wanton attacks by
those claiming to be
superior. But the law
has not achieved
desirable results to
reduce the number of
crimes against them,
including murders and
rapes, and the
conviction rates are
dismally low, writes
PS Krishnan as he
critically analyses
atrocities committed
on a community
springing from the
centuries old
caste bias
6
ATROCITIES AGAINST DALITS
Retrospect
and Prospect
trocities against scheduled
castes (SCs) and scheduled
tribes (STs) and untouchability are the natural expressions of the
unnatural Indian caste system (ICS).
Therefore, a clear understanding of
the
age-old
phenomenon
of
“untouchability”, which is an integral part and essential feature of the
A
ICS and of the recent phenomenon of
atrocities, can only be facilitated by a
brief overview of the ancient caste
bias and how it works in relation to
the SCs and STs and also socially and
educationally backward classes (also
known as backward classes or other
backward classes and hereafter
briefly referred to as BCs). The usual
DALIT RIGHTS
descriptions and interpretations of
the caste system, which are but of
course upper caste-centric, do not
bring out the essence of its nature
and functions. In order to perceive
that essence, it is necessary to study it
from the standpoint of the large
majority of the Indian people, who
have been its victims in various
forms and degrees, and to understand how the caste system works in
relation to the SCs, STs and the BCs.
Dr Babasaheb Ambedkar was the
first thinker to bring a fresh approach
to the examination of the essence and
functioning of the caste system in
India. Contrary to earlier and later
practice, he focused attention on
labourers in relation to the caste system. He identified its important features by characterising it as:
“A division of labourers into
water tight compartments” and as
“an hierarchy” in which the division
of labourers is graded one above the
other. He further refers to this as “a
stratification of occupations”.
Justice Chinnappa Reddy felicitously and appropriately called caste
a system of “gradation & degradation” in his judgement in the Vasanth
Kumar case of 1985 [1985 Supp
SCC: 714]
Looking at the Indian society in
relation to its socio-economic frame
and from the viewpoint of SCs, STs
and BCs, I consider it realistic and
www.combatlaw.org
enlightening to distinguish four layers of castes — very different from
the traditional four Varnas model.
The traditional Varna model is flawed
for various reasons. For one, through
this model the privileged minority
has appropriated for itself threefourths or even more of the conceptual space, relegating the majority to
the residual space characterising it as
Shudra, and leaving no space at all for
another substantial part of the population who were characterised as a
Varnas. This model and the literature
that has drawn on this model focus
on concepts like “pollution” and
“purity” which are terms coined by
the privileged category to justify its
privilege and the deprivation of others and they only help to obfuscate
the functional reality of the Indian
caste system. Its greatest deficiency is
that it does not bring out the castebased exploitation which was its core
essence. It also does not bring out its
functional role of monopolisation of
advantages and privileges by a
minority of the population. The diagrammatic
representation
(see
graph) of India’s traditional socioeconomic system and structure, still
in operation and which was earlier
expounded in my book Empowering
Dalits for Empowering India1 and elsewhere, depicts this clearly.
The topmost layer is that of privilege and prestige. It consists of
The colonial era and the
post-IIndependence
decades have no doubt
introduced changes, but
have not fundamentally
altered the four-llayer
profile of the socioeconomic frame of nontribal India. Broadly
speaking, most of the
castes in the lowest
layer have been
classified as SCs for the
purpose of measures of
special protection and
safeguards since 1935
and also after
Independence under a
series of Presidential
Orders issued in terms
of Article 341 of the
Constitution. They have
been so classified on
the basis of the criterion
of “untouchability”.
While the numerically
large castes in this layer
are typically agricultural
labour castes (ALCs), to
this layer should also be
assigned a number of
numerically small
castes which are
nomadic (N), seminomadic (SN) or
“Vimukta Jati” (VJ) or
“ex-ccriminal”. Some of
them have also been
classified as SCs on
account of their being
found to be victims of
untouchability
7
DALIT RIGHTS
A Diagrammatic Representation of India’s Traditional Socio-Economic Structure
Castes of Individuals/families in
TOP LAYER
positions/occupations of privilege and prestige
Almost Invariably forward/Advanced Castes
Castes of Peasants
MID-LAYER
(Arrows show tendency to break loose
Generally SEBC/OBC
from domination of and seek equal
Castes of Artisans & Artisanal/Artisan-like
Pastoral castes
Castes of those
Lower Mid Layer
Producers
rendering services
Almost Invariably SEBC/OBC
Layer
Tribes of Scheduled Areas
Agricultural Labour Castes
(STs)
(Mostly SCs or Dalits)
Very Backward Peasants of Very
Tribes outside Tribal Areas (STs)
Backward “ethnic homelands”
Bottom Layer
Parallel
to
Bottom
Layer
castes, to which all or the major proportion of persons in prestigious and
privileged positions and occupations
traditionally belong. Such traditional
positions and occupations include
religious/spiritual authority, state
governance and public administration, control over agricultural land
(irrespective of whether and when
individual ownership came into existence in a region), military professions, commerce and the like. The
second layer consists of land-owning
and cultivating peasant castes. In
relation to land, their traditional
position was between land-controlling castes and agricultural labour
castes. But, as a result of postIndependence land reforms, they
have recently become land-controlling castes in some parts. Some of the
peasant castes are also herders of cattle, sheep, goats etc. The third layer
consists of two or three sub-layers —
the castes of traditional artisans and
the castes providing various personal
services and pastoral castes. The lowest layer consists essentially of castes
of agricultural labourers. The castes
of the three lower layers have traditionally been producing primary and
8
secondary goods and rendering various types of services and labour
mainly for the top layer, on unequal
terms in varying degrees and forms,
and involving exploitation at various
levels. This has been facilitated by
the economic power of the top layer
aided by the ideology of “caste-withuntouchability”, the latter part (i.e.,
untouchability) being directed
against the castes in the lowest layer.
The colonial era and the postIndependence decades have no
doubt introduced changes, but have
not fundamentally altered the fourlayer profile of the socio-economic
frame of non-tribal India. Broadly
speaking, most of the castes in the
lowest layer have been classified as
SCs for the purpose of measures of
special protection and safeguards
since 1935 and also after independence under a series of Presidential
Orders issued in terms of Article 341
of the Constitution. They have been
so classified on the basis of the criterion of “untouchability”. While the
numerically large castes in this layer
are typically agricultural labour
castes (ALCs), to this layer should
also be assigned a number of numer-
ically small castes which are nomadic
(N), semi-nomadic (SN) or “Vimukta
Jati” (VJ) or “ex-criminal”. Some of
them have also been classified as SCs
on account of their being found to be
victims of untouchability.
To this layer also belong a number of scheduled tribes specified in a
series of presidential orders issued in
terms of Article 342 of the
Constitution. While STs as a whole
are outside the ambit of the Indian
caste system and the bulk of them
live in remote tribal areas, some of
them have been sucked out of their
homelands and have virtually
become ALCs like the typical SCs.
Some others represent tribes which
never had a separate homeland and
still others may be representatives of
those submerged by the advancing
caste-based agricultural civilisation
of India. STs outside tribal areas live
in style and circumstances which are
little different from those of SCs and
therefore logically belong to this, the
lowest layer along with the SCs.
Those N, SN & VJ communities
which are neither SC nor ST are
entered in BC lists. The castes in the
second layer i.e., the mid-layer are
DALIT RIGHTS
generally found in BC lists. There are
exceptions, which are logical and
realistic. The presence of any caste of
the top layer in BC lists is exceptional and such exceptions are either
deliberately contrived aberrations or
unrectified historical hangovers.
STs in tribal areas — accounting
for two-thirds to three-fourths of the
scheduled tribe population of India
— constitute a layer broadly parallel
to the lowest layer and partly jutting
above vaguely. This layer has nothing to do with the Panchama of/ outside the traditional four Varna model.
The STs even in their homeland —
though free from untouchability and
the daily intrusion of and constant
oppression of the caste bias — rank
with SCs in the matter of all-round
deprivation. In their homelands their
life is a daily struggle to retain what
they have against relentless external
incursions — a battle in which all
odds are stacked against them and
which they have been and still are
losing. Some of the N, SN and VJ categories have been included in the
lists of STs on account of their possession of tribal characteristics.
Among the main features and
effects of the working of the Indian
www.combatlaw.org
caste system through the centuries
till date have been:
(a) To lock up labourers as labourers,
and agricultural labour castes as
ALC.
(b) Keep SCs down in their position
with no or little scope for escape.
(c) Keep STs grounded in remote
areas except only to be drawn out to
supplement labour requirements.
SCs – as the
greatest and
most intensive,
forced
contributors of
agricultural
labour in India –
have been central
to this theme of
exploitation and
deprivation
(d) To keep SC and ST in conditions
of segregation and demoralisation
and to deprive/minimise opportunities for their economic, educational
and social advancement and upward
mobility.
(e) To Keep the backward classes tied
down as providers of agricultural
products (peasants), non-agricultural
primary products (fisher-folk), traditional manufactured and processed
products (artisans and skilled workers), service providers (hair-dressers)
etc, on terms grossly adverse to them
and hampering their economic, educational and social upliftment.
(f) To retain a virtual monopoly over
superior opportunities in the hands
of a small elite drawn from the top
layer of the traditional socio-economic system, by hampering, handicapping and hamstringing SCs, STs and
BCs in different ways and to different
degrees.
SCs – as the greatest and most
intensive, forced contributors of agricultural labour in India as well as
other workforce, including labour of
the most sordid and unpleasant type
such as sanitation and death and cremation-related services – have been
central to this theme of exploitation
and deprivation. The agro-climatic
characteristics of India, with the
monsoon confined to a limited part
of the year necessitating a large
reserve of labour force based on the
requirements for agriculture during
short peak periods made it extremely
important for the design and purpose of the caste system to ensure
that the “untouchable” castes now
classified as SCs were kept in a state
of socio-economic incarceration
without hope of redemption or
escape. The coercive mechanism
designed to secure this purpose has
been:
1. The caste system in its totality;
2. Specifically against the scheduled
castes, the instrumentality of
untouchability over the centuries,
which continues to this day with full
virulence;
3. For many centuries the Indian
caste system was able to operate as
the perfect instrument to keep the
“untouchable” castes and plains
tribes under total subjugation as
providers of labour for agriculture
and other purposes;
4. The weapon of atrocities in the
9
DALIT RIGHTS
modern context when SCs have
rejected the caste system ideology
and psychology of subservience and
thus the efficiency of untouchability
as a disciplining instrument has been
partly blunted.
Emergence of “atrocities”
The reformist, nationalist and revolutionary movements of the last one
and a half centuries and the
Ambedkarite
movement
have
instilled a new sense of awareness in
the Dalits. Under its influence they
refuse to accept their status as
ordained by the Indian caste system.
This was given another dimension by
the movement for land reforms, for
reduction of crippling burdens on
sharecropping tenants and for
improvements in agricultural wages
like the Telengana and Tebhaga
agrarian movements and the agricultural labourers’ strikes in places like
Thanjavur. It became necessary for
the dominant classes drawn from
upper castes in different parts of the
country to forge new instruments of
control. This is how atrocities, as we
know them, made their debut on a
large scale in the 60s. As the resistance of the Dalits has grown, so the
frequency and brutal ferocity of
atrocities have grown apace.
Existential problems of SCs
Along with an understanding of the
Indian caste system in relation to
Dalits, equally necessary for an
10
understanding of untouchability and
atrocities in their correct context and
perspective is a picture of the existential conditions of SCs and STs,
which continue to operate to this day
even after nearly six decades of our
glorious Constitution. No doubt
there has been some amelioration of
their conditions compared to the preAmbedkar, pre-Independence, preConstitution stage.
The present existential conditions
of SCs are marked and marred by the
following features:
(a) Landlessness and State’s failure to
distribute land among all rural SC
families
(b) Lack of irrigation for and poor
development of even the little land
held by SCs
(c) Condemnation of SCs to agricultural servitude and other hard labour
with poor wages/remuneration
(d) Condemnation to safai karamcharis
or human scavenging
(e) Subjection to rampant bonded
labour
(f) Denial of social security and modern facilities and conditions of work
for the agricultural labour sector and
the rest of the unorganised labour
sector which accounts for 93 percent
of the entire labour force of the country and among whom SCs, including
those belonging to religious minorities (SCRM) are prominently placed.
In addition, including socially and
educationally backward classes
belonging to religious minorities
(SEdBCRM) and STs including those
belonging to religious minorities
(STRM) are also significantly present
(g) Exclusion of majority of SC children from the main school system,
which manifests itself as non-enrolment (including false enrolment),
low rates of enrolment, high rates of
dropouts (which partly is adjustment
of false/formal enrolments) and low
rate of survivors at the end of school.
(h) Denial of quality education and
denial of “level playing field” at
every level of education — particularly at higher educational level.
Failure to enact reservation in private
educational institutions pursuant to
the 93rd amendment of 2005 and following the successful defence and
upholding by the Supreme Court of
the Central Educational Institutions
(Reservation in Admission) Act, 2006
(i) Grabbing away in 2003 of funds
provided in 1996 for establishing residential schools for quality education
for SCs (also similar schools for STs
and BCs)
(j) Denial of access to market opportunities
(k) Trivialisation, routinisation and
truncation of special component plan
(SCP) for scheduled castes, which
was initiated about a quarter century
back (in the late 1970s)
(l) Poor outlays in the budgetary heads
of welfare/ social justice ministry
(m) Unsatisfactory implementation,
quantitatively and qualitatively, of
existing centrally sponsored schemes
(CSS) and other existing developmental instrumentalities
(n) Special problems of Nomadic,
semi-Nomadic and Vimukta Jati, (formerly criminal) communities have
missed attention. Their problems are
different from those of the numerically large SC/ST/BC communities.
(o) Nominations to national commissions for deprived categories are
often made inappropriately, thereby
crippling their functional efficiency
and converting national commissions largely into national omissions.
Gross delays in tabling of annual
reports in Parliament and in public
domain, defeat their purpose
(p) Poor representation of SC, ST and
SEdBCs in important bodies relevant
to development and empowerment
(q) Half-hearted implementation of
reservation in central as well as state
governments, PSUs, PSBs, universi-
DALIT RIGHTS
ties and leaving in the limbo bill for
reservation for SCs and STs in the
services of the State in order to provide statutory base and force for
them
(r) Tampering with and diluting preexisting reservation rules, including
relegation of SCs and STs from the
first and third positions in the pre1977 roster to the seventh and thirteenth positions in 1977 by misinterpreting the Supreme Court judgement in the Sabharwal case
(s) Denial of normal service benefits
and progress to SCs
(t) Denial of entry for SCs in technical, supervisory and managerial
positions in the organised private
sector till date
(u) Depriving SCs of reservation in
PSUs while privatising them and
consequent reduction in number of
reserved posts
(v) Continuance of atrocities and
practice of untouchability
(w) Failure to establish Dalit-friendly
administration at all levels and to
adopt Dalit-friendly personnel policy
Existential problems of STs
Scheduled tribes share in common
many of the existential problems of
the SCs. However, following are
some of the difficulties faced by the
former exclusively:
(i) Fraudulent and illegal dispossession of STs from their lands, often
with implicit or even open collusion
by those wielding power
(ii) Consequent reduction of large
numbers of STs into landless agricultural wage labourers
(iii) Conversion of tribals into
minorities in traditional tribal territories
(iv) Depriving STs from their traditional rights in forests. The Indian
Forest Act 1927, of colonial vintage,
had been continued after independence till the Scheduled Tribes and
other Traditional Forest Dwellers
(Recognition of Forest Rights) Act
was passed in December, 2006. But,
the implementation of this Act is facing rough weather of late
(v) Failure to reverse the process of
shrinkage of non-timber forest produce or NTFP (minor forest produce
or MFP), on which a large proportion
of STs depend wholly or partly for
their livelihood
(vi) As part of the exploitation prowww.combatlaw.org
cess, poor prices being paid by private merchants as well as governmental and cooperative agencies for
NTFP/MFP collected by STs
(vii) Displacement of STs from their
lands and territories in the name of
industries, mining, hydel plants, irrigation, township and other projects,
the benefit of which accrues to nontribals and non-tribal territories,
major proportion of project displaced
persons (PDPs) are STs
(viii) Displacement of tribal communities from their traditional common
property survival resources through
creation of national parks, sanctuaries and biosphere reserves
(ix) Delayed formation of the second
commission on the administration of
the scheduled areas & welfare of STs
under Article 339 (1), and lack of
action on its report submitted by the
commission to the government in
Along with an
understanding of the
Indian caste system
in relation to Dalits,
equally necessary
for an understanding
of untouchability
and atrocities in
their correct context
and perspective
is a picture of the
existential
conditions of
SCs and STs
2004. Further lack of transparency
regarding action proposed and failure in tabling the report in
Parliament and placing it in public
domain
Atrocities against SCs and STs,
along with untouchability against
SCs, has to be seen as part of this
large scheme of deliberate and comprehensive deprivation of SCs and
STs against the socio-historical background of the caste system and its
functioning; the inadequate efforts
made by post-Independence and
post-constitutional governance to
terminate this evil and anti-national
historical legacy, and the consequent
present existential plight of the SCs
and STs despite some amelioration
after the Constitution. This applies in
varying forms and varying extents to
the backward classes. However, the
present discussion is confined to SCs
and STs as they constitute the worst
victims of the inherited system,
which is largely continuing, and the
victims of atrocities are mainly the
SCs and along with them, to a lesser
extent, the STs.
Antecedents of PCR Act
Before Constitution of India, 1950
The following, in brief, were the preConstitution immediate antecedents
of the Act:
● Exposure of untouchability and its
wide ramifications as the Achilles’
Heel of the Indian society and the
projected Indian polity by Dr
Babasaheb Ambedkar at the round
table conferences.
● Negotiations between Mahatma
Gandhi and other Congress leaders
with Dr Babasaheb Ambedkar in the
Yeravda prison following Gandhi’s
fast against the Macdonald Award in
September 1924, the MahatmaBabasaheb dialogue culminating in
the Yeravda Pact.
● Consequent sensitisation of the
nationalist movement and the Indian
National Congress to untouchability
and the injustices done to the SCs —
its adoption of removal of untouchability as a major plank.
● Enactment of the Madras Removal
of Civil Disabilities Act, 1938 by the
popular government of the Congress
in Madras Presidency led by Rajaji.
● Similar enactments in many other
provinces and princely states in the
years shortly before or after independence and before the Constitution of
India was adopted.
Under Constitution of India, 1950
● The watershed of Article 17 of independent India’s Constitution adopted in 1950 reads: “17. Abolition of
untouchability – untouchability is
abolished and its practice in any
form is forbidden. The enforcement
of any disability arising out of
untouchability shall be an offence
punishable in accordance with law.”
● Enactment of the Untouchability
11
DALIT RIGHTS
(Offences) Act, 1955 w.e.f. from 0106-1955, followed by immediate realisation of weaknesses of the Act.
● Consequent introduction of the
Untouchability
(Offences)
Act
amendment and Miscellaneous
Provisions Bill in Lok Sabha in 1972
and its passing in 1976 as the
Protection of Civil Rights Act, 1955
with stronger, but still inadequate,
provisions
with
effect
from
19.11.1976.
Antecedents of PoA Act
In modern times, atrocities can be
traced back to the 19th century in
parts of India when the discipline of
untouchability began to be challenged by the “untouchables”. A
committee which toured British
India in 1920s for review of the working of the Government of India Act,
1919 noted that many atrocities were
being committed during those days
against the untouchables but were
going unnoticed and unpunished
because no witness would come forward to give evidence. Dr Ambedkar,
then MLC of Bombay, cited some
early instances of atrocities against
Dalits in Annexure A to the statement
submitted by him to the Indian statutory
commission
(Simon
Commission) on behalf of the
Bahishkrita Hitakarini Sabha on
29.05.1928, including the rioting and
mass assaults on Dalits on 20.03.1927
for asserting their right to drinking
water from the public chowdar tank
in Mahad, Kolaba district; and the
mass assaults on and burning down
of the dwellings of Balai people (SC)
in Indore district. The early postindependence
signal
of
the
Ramanathapuram riots of 1957 starting with the assassination of the
young educated Dalit leader
Emmanuel for daring to defy
untouchability-based interdicts on
SCs did not register on the national
radar though the state government
took strong measures to quell the
attacks on SCs. Under pressure of
Dalit MPs, the government started
monitoring atrocities from 1974, and
in the case of STs 1981 onwards with
special focus on murder, rape, arson
and grievous hurt.
There was a flare up of atrocities
in and from 1977 onwards. The then
home minister in defence, apparently
to show that atrocities were not as
12
serious as claimed, advanced the
strange and shocking argument that
the number of SC victims of atrocities
was less than 15 percent, perhaps
without understanding the implication of that argument that the SCs’
due share in this is equal to their
population percentage (though their
entitlement to this share in landownership, national wealth, etc. were not
recognised). The outcry that followed persisted resulting in a cabinet
Atrocities can be
traced back to the
19th century in parts
of India when the
discipline of
untouchability began
to be challenged by
the “Untouchables”.
A committee which
toured British India in
1920s for review of the
working of the
Government of India Act,
1919 noted that many
atrocities were being
committed during those
days against the
untouchables but were
going unnoticed and
unpunished
reshuffle. At that time the government created the post of a joint secretary in the ministry of home affairs in
charge of the subject of scheduled
castes and backward classes including atrocities. I volunteered for this
post and took up on top priority the
task of monitoring of atrocities which
I converted from mere receipt and
transmission of statistical information, additionally into an active pursuit of individual gruesome incidents
like Belchi, Bodh Gaya, Chainpur,
Marathwada, Chikkabasavanahalli,
Indravalli, etc. to their logical conclusion. The second important task was
getting special courts with special
judges for specific cases established
by state governments, supported by
carefully chosen special prosecutors
and securing quick trials and execution of verdict without delay. In these
efforts, I gratefully recall the total
support of Dhaniklal Mandal, the
then minister of state for home
affairs. I continued this practice after
the regime change in 1980 and similarly covered the atrocities at Pipra,
Kafalta, Jetalpur, etc. This produced
a crop of convictions and punishments including death sentences in
Belchi.
Atrocities continued with rising
ferocity and frequency as basic contradictions, vulnerabilities and causative
factors were evaded by the State at
national and state levels for obvious
reasons and treatment was mainly
symptomatic and palliative instead of
the required radical solutions.
Under continued pressure of
Dalit MPs and leaders, magnitude
and gravity of problem was finally
recognised by prime minister Rajiv
Gandhi and he announced from the
Red Fort in his Independence
address on August 15, 1987 that an
Act would be passed, if necessary, to
check atrocities. I was called back
from the state and appointed as special commissioner for SCs.
After intensive consultations the
PoA Act emerged in September 1989
but not operationalised immediately
under section 1 (3). I recall the active
interest and support of Dr. B
Shankaranand and the then home
minister Buta Singh, particularly to
my view that a new and stringent Act
is necessary and it is not enough if
the PCR Act is amended for this purpose as suggested by the ministry of
welfare then.
In my capacity as secretary, ministry of welfare, I took the initiative
to quickly operationalise the Act
w.e.f. January 30, 1990, after urgent
consultations with state governments in order to swiftly cut the
Gordian knot.
Impact of PoA Act
The Act came as a watershed in the
jurisprudence of protection for the
SCs and STs and their better coverage
by the right to life under Article 21 as
creatively interpreted from time to
time by India’s higher judiciary.
DALIT RIGHTS
Over time it created a certain
measure of confidence in Dalits that
they have a protective cover and also
produced a sense of wariness in the
potential perpetrators of atrocities.
However, the full thrust of the Act is
not available on account of deficiencies in the Act and in various aspects
of the implementation of the Act.
As a result of the traditional
Indian socio-economic structure still
largely prevalent today, most of the
SCs live typically in a situation
where
they
are
the
major
segment/majority of agricultural
wage labourers but a minority of the
population. Their numerical vulnerability is accentuated by the socio-psychology of the caste system precluding support for them from labourers
of other castes whose affinity is
unfortunately more towards the
large landowners of their respective
castes. Juxtaposition of a caste of
agricultural labourers (SC) with a
caste of land-based DUC or DMC or
DMBC to which most of the large
landowners belong, provides an
explosive situation which can be
ignited by any immediate spark.
Dalits’ resistance to various forms of
discrimination and demand for normal civilised inter-personal, intercommunity relations is opposed
especially by major land-owning and
land-controlling DUCs, DMCs and
DMBCs.
The upward mobility that a small
proportion of SCs have achieved
through education and reservation
and consequent change in lifestyle is
an eyesore to those who are accustomed to seeing SCs as only indigent
and subservient labourers.
Even legitimate protection of
their rights when encroached upon
by others (the instance of encroachment on Balmiki Ashram land in
Gohana in Haryana by an adjacent
lawyer of the dominant upper castes)
is perceived as intolerable and insolent rebellion and is resentfully
stored in the mind waiting for an
opportunity to wreak collective
“vengeance”.
Evidential analysis of atrocities
Atrocities out of demand for better wages
● Kilavenmani holocaust in Tamil
Nadu, 25.12.1968
● Atrocity in Gurha Slathian, Jammu
& Kashmir, 1985,
www.combatlaw.org
● Bihar massacres at Belchi,
27.05.1979
● Pipra, 26-27.02.1980
● Nonhi-Nagawa, 16-17.06.1988
● Damuha-Khagri Toli, 11.08.1988
Atrocities connected with bonded labour
● Killing of Bacchdas in Mandsaur
district, MP, 1982
● Atrocity on bonded SC quarrying
labourers at Chikkabasavanahalli,
near Bangalore, Karnataka, 1976
Atrocities connected with land
● Atrocity in Rakh Amb Tali, Jammu
& Kashmir, 10.07.1988
● Killings etc., in Bihar at Bodh Gaya,
08.08.1979
● Chainpur, 10.12.1978
● Khairlanji, Maharashtra,
29.09.2006
Atrocities connected with civic facilities
● Killings & arson in Kachur, MP,
25.06.1985
● Atrocity in Diyalpur, Haryana
26.11.1997
Hold-up of dead bodies of aged
women, one each in Konalam, Tamil
Nadu, 1982 and Patchalanadakuda,
AP, 1989
●
Atrocities graduating from untouchability
Jetalpur, Gujarat, 1980
● Destruction/damaging of hundreds
of huts/houses in many villages of
south Arcot & adjoining districts,
Tamil Nadu, September 1987 &
January 1988
● Massacre on account of an SC
bridegroom riding on horseback at
Kafalta, Uttar Pradesh, 09.05.1980
● Masari, Rajasthan, 09.07.1989
● Panwari, Uttar Pradesh, 02-06-1990
● Kumher, Rajasthan, 06.06.1992
● Drinking water segregation-related
untouchability
● School in Divrali, Rajasthan,
December 1983
● Kachur, Madhya Pradesh,
25.06.1985
● Udamgal-Khanapur, Karnataka,
06.02.1988
●
13
DALIT RIGHTS
Killings etc., on temple entry right
issue at Hanota, MP, 1984, (rare case
of death sentence for two on
11.10.1988)
● Nathdwara, Rajasthan, 1988 and
again in 2004
●
Atrocities connected with Dalit assertion
of self-respect & equality
● Eight Dalits were massacred, some
of them well educated, in Tsunduru,
Guntur District, Andhra Pradesh,
06.08.1991.
● Gohana, Sonepat District, Haryana
where on August 31, 2005, 55 houses
were destroyed by arson and another
97 houses were looted. All of them
were pucca houses. Twenty-five percent Balmikis of this town have,
through their hard labour, savings
and some education gave up the traditional occupation of scavenging
and switched to more dignified occupations with some dignity.
● The atrocities extending over eight
to nine days from August 1, 1978 on
Dalits in Marathwada following the
resolution moved by the chief minister in the assembly for renaming the
Marathwada University after Dr
Babasaheb Ambedkar’s name in
response to a long standing Dalit
desire and in fulfillment of earlier
promises. In the name of opposing
the proposed renaming, on the one
hand mobs attacked Dalit agricultural labourers with whom land-owning DUC had enmity on account of
constant wage-disputes; on the other
14
Majority of STs
live in their own
tribal territories or
homelands where
they are in majority
and therefore are safe
from physical attacks
that SCs are
vulnerable to. But
when they are drawn
out of their territories
into the plains as
migrant labourers
etc., they become
equally vulnerable
as the SCs
hand educated Dalits were targeted
because of the improvement registered in their standard of life and
education.
Analysis of atrocities on STs
A large majority of STs live in their
own tribal territories or homelands
where they are in majority and therefore are safe from physical attacks
that SCs are vulnerable to. But when
they are drawn out of their territories
into the plains as migrant labourers
etc., they become equally vulnerable
as the SCs. One of the serious cases of
atrocities on STs is the mass rape of
six ST women labourers in Padaria,
Bihar.
In their homelands they are
sometimes subjected to mass killing
not at the hands of mobs but the
police when they resist illegal acquisition of their lands or their other
age-old traditional rights. On April
19, 1985, in Banjhi area of Sahibganj
district in Bihar, 15 STs including an
ex-MP were killed in police firing on
an agitated mob protesting against
deprivation of traditional fishing
rights by the government, which settled a tank in favour of a non-local,
non-ST.
The second incident was in
Indravalli, Adilabad district of
Andhra Pradesh in 1978 where 10
STs were killed in police firing in
connection with a land dispute.
Killing in police action is not covered
by the PoA and many more deficiencies in the PoA Act hamper its benefits reaching the Dalits promptly,
effectively and fully and right to life
under Article 21 has not been made a
reality for them. The provision in section 14 (2) requiring the state government to specify for each district a
court of session to be a special court
to try the offences under this Act is
also not fully implemented. This contradicts the very purpose “of providing for speedy trial”, because trial
will not be speeded up by merely
calling an existing court (with all of
its load of various cases) a special
court. Instead the section ought to
have provided and even now ought
to provide for the establishment of an
exclusive special court in each district exclusively to try the offences
under this Act, on day-to-day basis
and no other offences with corresponding provisions for an exclusive
special public prosecutor and a special investigating officer.
Section 3 in the Act does not list
among the crimes of atrocities social
boycott, economic boycott, social
blackmail and economic blackmail,
which are realities faced by Dalits
whenever they make just demands
or resist injustices or asserts their
rights. Section 3 (2) of the Act does
not provide death sentence for mur-
DALIT RIGHTS
der where the court considers death
sentence appropriate.
The protection of section 10 of the
Act by externment is not available for
the SCs who are the main victims of
the atrocities (more than 80 percent
of atrocities against SCs and STs are
committed on SC) while the share of
SCs specifically in cases of arson and
grievous hurt is close to 90 percent.
The Act also fails to take the SC
converts to Christianity (SCX) or Dalit
Christians within the protective
umbrella of its ambit though SCX have
been subjected to atrocities not because
of their religion but because of the
same reason why SC Hindus have
been victimised. This was among the
issues, which held up the commencement of the proper trial in the
Tsunduru case till November 2004.
Deficiencies in implementation
This falls in addition to deficiencies
in the Act itself. No matter how
sound an Act is, unless the personnel at different levels in charge of its
implementation perform totally in
accordance with the letter and spirit of the Act, its implementation will
fall short of the objective of reaching
the protection of the Act to all the
people intended. One of the practical problems experienced by the
victims and survivors of atrocities
and by Dalit and human rights
activists at the field level is the
indifference of local level personnel
and callous attitude of higher
authorities (all subject to honourable exceptions).
Analysis of atrocities
A close study of the annual reports
laid in Parliament as required by section 21 (4) of the PoA Act reveals that
of the total number of cases with
police at beginning of each year
including those brought forward
from previous year, only 50-60
percent have been chargesheeted
in courts.
Table (1) shows the percentages
of disposal of cases in courts.
From the point of view of the victims of atrocities the figures in the
4th row are the most relevant. While
they may not be aware of statistical
details, the victims’ perception is that
the Act and its implementation fall
far short of their expectation and
need and the SCs in each area are
www.combatlaw.org
aware of the acquittals in many serious cases of atrocities and consequent miscarriage of justice.
The Dalits perceive this as a failure of the complete system and are
not interested in the apportionment
of blame among the different limbs
of the system and of the State.
The low figures in row 1 are also
within their perception in the shape
of the situation in which substantive
trial in Tsunduru (06.08.1981) case
could start only in November 2004
and the Kumher (06.06.1992) case is
still languishing.
All in all, though the Act has
given some sense of security to the
Dalits, its effectiveness has not measured up to its potential and purpose
on account of deficiencies in the Act
efforts at resolution. They look like a
mere enumerative and uncritical
recital of state governments’ reports.
For e.g., there is nothing to explain
the sudden and steep and primafacie inexplicable and incredible fall
of new cases registered in Uttar
Pradesh from 9,764 in 2001 to 5,841 in
2002 and 1,778 in 2003!
The greatest defect is that special
mobile courts do not exist in every
district as a means of handing out
swift and deterrent punishment on
the spot. Wherever a mobile court
exists and has delivered punishment
immediately, I have personally seen
the impact of fear and curbing of
untouchability practice at least for
some time (doses need to be repeated
periodically for this chronic disease).
Table-1
Year
2003
(Latest
Annual
Report
tabled on
25.11. &
28.11.2005)
2002
2001
2000
1999
1
Percentage of cases
in which trial
completed in courts
at beginning of the
year including B/F of
previous year
14 %
21 %
11 %
8%
10 %
2
Percentage of cases
convicted to trialcompleted cases
13 %
11 %
12 %
11 %
12 %
3
Percentage of cases
acquitted or
discharged to trial
completed cases
88 %
89 %
88 %
89 %
88 %
4
Percentage of cases
convicted to total
cases in courts
2%
2%
1%
1%
1%
5
Percentage of cases
acquitted or
discharged to total
cases in courts
12 %
18 %
9%
6%
8%
and delay and laches in investigations and the slow progress of trial
and large scale acquittals.
Further, the annual reports laid
before Parliament do not bear the
impress of in depth and critical analysis, identification of problems and
Where special mobile courts exist
their functioning is often hampered
by thoughtless actions like withdrawal of vehicles, rendering mobile
courts immobile on certain occasions,
keeping vacant posts unfilled etc.
This has laid the foundation for non15
DALIT RIGHTS
and-ineffective implementation of
the categorical constitutional mandates of Article 17 read with Article
14 and 46.
Deficiencies in implementation
The deficiencies in the Act have been
compounded by severe deficits of
implementation all along the line,
presenting a more dismal picture
than even the implementation of the
POA Act.
Following are the highlights of a
statistical analysis of the annual
reports tabled in each house of
Parliament by the government from
1977 up to 2003:
● Of the total number of cases with
police at beginning of each year
including those brought forward
from previous year, only 1/8th to
1/5th have been chargesheeted in
courts.
● A number of states are reporting nil
against new cases registered in the
year, which is far from reality.
● The number of cases reported by
many states is unrealistically low, for
example, only two in 2002 and three
in 2003 in Tamil Nadu.
● The percentage of conviction in
courts and other quantitative data
are much more bleak than even for
the PoA Act both at the police stage
as well as at the court stage.
● The figures do not mesh with the
ground level reality of rampant
untouchability and the registration
and variations is apparently the
product of casualness and in some
cases perhaps even election-related
remote controls.
Even the pan-India picture
belongs to a different world away
from reality.
The annual reports do not contain
any indication either of the state governments or the central government
making efforts to fulfill the specific
mandates of section 15A nor do they
show any application of mind to critically identify deficiencies and
anomalies in the reported statistics
and correct them.
Some neo-modern forms of
untouchability have appeared in
rural as well as urban areas in many
parts of the country, in keeping with
new developments. For example,
explicit caste bias at village teashops
is a recent phenomenon which has
paved way for a variety of discrimi16
natory practices such as separate
seating, separate and usually old,
dirty and cracked or chipped glasses,
for SCs.
In many metropolitan areas,
untouchability has seemingly attenuated, but is practised with sophisticated concealment in variety of ingenious ways, revealing creativity wor-
Some neo-modern
forms of untouchability
have appeared in rural
as well as urban areas
in many parts of the
country, in keeping with
new developments.
For example, explicit
caste bias at village
teashops is a recent
phenomenon which has
paved way for a variety
of discriminatory
practices such as
separate seating,
separate and usually
old, dirty and cracked
or chipped glasses,
for SCs
thy of a better cause. In many modern offices, Dalits have to suffer snide
remarks and quiet and neat acts of
discrimination.
Acts need more teeth
In the Dalit manifesto of 1996, I listed
some important measures required
to strengthen the Act so as to make
the right to life guaranteed by Article
21 of the Constitution to every person a reality for the SCs and STs and
also included therein drafts of related amendment of sections 14 and 15
and inserting a new clause 15(A).
These related to the establishment of
a court of session in each district to
be a special court exclusively to try
the offences under this Act, appointment of a public prosecutor for each
such court for the purpose exclusive-
ly of conducting cases under this Act,
and appointment of a police officer
as investigating officer exclusively
for the purpose of investigation of
the cases under the Act. The measures also included certain related
matters in order to see that the purpose of the above provisions is not
administratively defeated such as the
stipulation that the judges, the special public prosecutors and the special investigating officers should be
appointed from panels prepared on
the basis of their record and reputation for upholding the rights of SCs
and STs, especially their right to protection from violence. The Dalit manifesto also contained a draft of the
amendment of clause (3) of section 2
of the Act to include social boycott,
economic boycott, social blackmail,
economic blackmail as atrocities,
recognition of any form of disrespect
to the statues of Dr Babasaheb
Ambedkar as a collective atrocity
against SCs and STs, and to provide
for death sentence for murder as provided in section 302 of the IPC and
for mandatory death sentence for
multiple murders, multiple mass
rapes and gang rapes. The draft further contained an amendment of section (10) so as to make the provision
of externment of a person likely to
commit an offence in order to protect
SCs and STs who reside outside
scheduled areas or tribal areas and
other measures like the constitution
of a special wing of rapid action force
at the Central level as well as state
levels, to exclusively deal with atrocities against SCs and STs so that any
outbreaks could be quelled promptly. These have been pursued from
time to time with different governments personally as well as through
letters.
The Dalit manifesto also included
amendments required in the PCR Act
like mandatory establishment of a
special mobile court in each district
for trying cases under the PCR Act on
the spot, and certain other administrative as well as civil society measures required to realise for the SCs
and STs the right to life under Article
21 which includes right to live with
self-respect, the practice of untouchability being a fundamental attack on
the self-respect of the SCs.
These amendments and measures
in respect of both the Act have also
DALIT RIGHTS
been recommended by the national
commission to review the working of
the constitution (NCRWC).
Role of human rights bodies
A number of Dalit and human rights
organisations and activists have been
engaged in helping and guiding SC
and ST victims and survivors of
atrocities towards rehabilitation. The
groups’ grassroots experience has
brought out specific problems of
implementation. These are partly
traceable to the lacunae in the PoA
Act and partly to the lackadaisical
way in which individuals are positioned in posts of responsibility for
actual day-to-day implementation of
the Act and indifference, subject to
honourable exceptions, at the top
levels of the political and permanent
executive at the national, state and
sub-state levels.
After twenty years
This is the twentieth year since the
Act came into existence. The Act was
passed by Parliament and received
the assent of the president on
September 11, 1989 and came into
force with effect from January 30,
1990. A number of Dalit and human
rights organisations feel that now
time should be utilised to critically
review the performance of the State
and its various limbs in its implementation and the realisation of the
objective of the Act and to come out
with measures required to further
strengthen the PoA Act, 1989 and
Rules, 1995 including essential
amendments to the Act and other
measures required to ensure its more
effective implementation. A preliminary draft on the amendments had
been prepared by a working group,
which included various points
already mentioned in the Dalit manifesto of 1996 and others arising from
the field experience of the last 20
years. This preliminary draft was
sent to a number of Dalit and human
rights organisations for their feedback and suggestions. A national
coalition for strengthening the PoA
Act and its implementation was also
set up in September 2009. The coalition has on its agenda the finalisation
of the draft and to review, finalise
and prioritise the amendments proposed and to work out the strategies
and other measures for strengthenwww.combatlaw.org
ing the Act and Rules and to secure
their effective implementation and
for the purpose to undertake mobilisation of Dalits, friends of Dalits and
all those who believe that the security and empowerment of Dalits is the
sine qua non for the security and
empowerment of India.
Amendments required
Amendments required in the Act
include:
(a) Amendments required to speed
up trials and the pre-trial process.
(b) To bring into the list of atrocities
certain crimes which do occur but
were not included in section 3 of the
Act. Major examples are social boycott, economic boycott, social blackmail and economic blackmail.
(c) Amendment to section 10 to make
externment relevant to the scheduled
castes situation also.
(d) A new chapter incorporating the
rights of victims and witnesses. One
specific problem area which needs
much consideration pertains to the
terms “with intent”, “intentionally”,
“intending”, “knowing it to be likely”, etc. and the interpretation placed
on these terms by courts in trials.
(e) Strengthening and elaborating the
presumption clause in section 8 is
also an area needing careful thought.
These are ideas that have been initi-
ated and require to be developed.
Other than amendments to the
Act, some measures have to be
adopted to ensure that the State as a
whole and every limb of the State
function effectively and sincerely,
taking the constitutional mandates
on the State and the constitutional
rights of Dalits with the seriousness
that they deserve and need. This is a
matter which requires careful
thought based on the field experience of Dalit and human rights
organisations and activists so that
practical and practicable measures
can be evolved, to be taken up with
the government and political parties.
This can include training and orientation of lawyers and activists to
utilise the Act and the socio-historical inputs contained in this so as to
make their role in court and precourt stages most effective.
Along with these measures,
directly connected with the Act, the
Rules and their implementation, are
related matters like the impact of the
recent amendment to section 41 of
the CrPC and the need for a
constitutional amendment to provide
the entry “development, welfare and
protection of scheduled castes and
scheduled tribes” in “List III –
concurrent list” of the seventh
schedule of the Constitution. The
17
DALIT RIGHTS
amendment to section 41 of CrPC is
the outcome of human rights
advocacy in view of the feeling that
the powers of police to make arrest
are used indiscriminately against the
poor and the helpless. While this
feeling is justified in the general
context, the context of atrocities is
different. Here, the accused include
or are backed by persons of influence
and power. In such a case, the
problem
faced
is
not
the
indiscriminate arrest by police, but
hesitation or even unwillingness to
make
arrest.
Therefore,
this
amendment
needs
a
further
amendment to exclude from its
purview the PoA Act, the PCR Act
and other Acts for the protection of
the weak against the powerful like
the Bonded Labour System Abolition
Act, 1976. At the same time, the
provision in section 41 empowering
victims and survivors to go on
appeal on their own even when the
State is hesitant or unwilling is
welcome and must be preserved.
The above constitutional amendment proposed earlier in the Dalit
manifesto 1996 etc will remove a serious gap in the seventh schedule and
will help in strengthening the comprehensive social justice action.
The campaign
This focused campaign has drawn
together a number of Dalit and
human rights organisations and
activists on a united platform. This is
a good augury for similar focused
campaigns, jointly by all Dalit and
human rights and patriotic organisations and activists on many other
issues pertaining to the rights of the
SCs and STs (the resumption of the
thread for a bill of reservation for SC
and ST in services under the State
and a bill for reservation in private
educational institutions, other education-related and land-related issues,
etc. and issues listed in the draft common minimum programe, 2009 in
respect of scheduled castes, scheduled tribes and backward classes and
the Himalaya Proclamation (2004),
all of which have been communicated to different political parties and
leaders). This campaign can also be
utilised to spread awareness among
agencies of the State and members of
the civil society, including the leaders
of the print and visual media, of the
18
The higher judiciary
can play a decisive
helping hand in certain
aspects of atrocities and
untouchability. For
example, the high courts
in their capacity as
overall superintendence
of lower courts may,
it is respectfully
suggested, consider
measures to speed up
disposals with special
attention to cases of
massive and gruesome
atrocities
need to actively help in and contribute to the control and elimination
of atrocities and untouchability. This
task should not be left only to the
Dalits. Leaders of the executive, both
political executive as well as permanent civil executive, can bring about
a zero-atrocity and a zero-untouchability situation in the country if they
take pro-active interest in extirpating
these twin blots on India’s face which
are sapping national energy and
optimal national progress. For example, if the political heads of the State
at the national and state levels can
spend even five minutes in their
tours to different parts of the country
and enquire in public view and hearing about the atrocity situation and
particularly about major cases and
the progress of action taken in
respect to them, it will have an electrifying effect on the entire system. A
few minutes with victims of atrocities will help lift the morale and selfconfidence of the long-suffering
Dalits. This is also true of the heads
of civil administration at the national, state, district and intermediate
levels and the heads of the police
forces at all levels. They now have, in
the NREGA, an instrument, very
effective if instituted promptly in
every village where atrocities take
place, to counteract social and economic boycott and blackmail which
intend to cow down victims, survivors and other possible witnesses.
The heads of local bodies, both rural
and urban, can make an intense contribution within their areas and thus
make Panchayati Raj more meaningful for Dalits.
During the campaign it must be
brought home to educated members
of civil society that continued neglect
in curbing atrocities and untouchability will not only heap continued
human injustice on Dalits but also
sap India’s potential for growth and,
therefore, it is in their own enlightened self-interest to actively cooperate with Dalit and human rights
organisations and activists in eliminating atrocities and untouchability.
Possible help2
The higher judiciary can play a
decisive helping hand in certain
aspects of atrocities and untouchability. For example, the high courts in
their capacity as overall superintendence of lower courts may, it is
respectfully suggested, consider
measures to speed up disposals with
special attention to cases of massive
and gruesome atrocities, and creation of possible special arrangements for clearance of arrears, and
meanwhile ensure full physical and
economic protection for the victims,
complainants and witnesses (the
importance of this emerges from the
findings of the committee of 1920
referred to earlier and has been
poignantly brought home again
recently by the Kambalapalli case
acquittals in Karnataka) — in some
cases this protection may need to
cover a whole community under
attack or threat in a village or tract.
(a) Provision of guidance to vastly
minimise acquittals so that there is
DALIT RIGHTS
no significant gap between reality as
widely known and trial-outcomes. In
this context chief justice (Rtd) A S
Anand’s observation while delivering Bhimsen Sachar Memorial
Lecture on 03.12.2005 as the then
chairman of NHRC, that the present
situation “resulted in the citizen getting tempted to take the law into his
own hands and take recourse to
extra-judicial methods to settle
scores and seek redress of his
grievance”, is very relevant. [In this
context it may be recalled, not
approvingly but as a warning, that
the first accused in the Kilavenmani
case who was acquitted with all other
accused, was murdered on the 10th
anniversary of the atrocity and a
prominent
personality
of
Karamchedu, who was believed by
Dalits to be the main person behind
the Karamchedu atrocity but was not
even chargesheeted was also later
murdered, the Naxalites claiming
credit for it and getting popularity at
the cost of established democratic
institutions].
(b) Utilisation of the inputs of this
presentation regarding the miserable
plight of the Dalits under the ICS, the
vulnerability of the SCs and STs in
their present existential situation, to
provide a socially realistic perspective to the lower judiciary in dealing
with atrocities, and in drawing permissible presumptions in addition to
the mandatory presumption prescribed by section 8 of the Act, along
lines similar to the way the Supreme
Court and high courts have sensitised evidentiary evaluation of the
testimonies of rape victims.
(c) Making the record of judicial officers in dealing effectively with cases
of atrocities (and similarly also PCR
Act cases) a criterion while considering proposals for elevation to the
Bench of high courts.
For quick disposal of appeals
from judgements and interim orders
of the trial court, institution of special
arrangements similar to the creation
of environment benches.
(d) Arrangements to pass quick
orders in PILs, instituted by Dalit
rights organisations in a number of
high courts and issue of specific
directions to the executive so as to
help move matters effectively
forward
(e) It is also respectfully suggested
www.combatlaw.org
This is the twentieth
year since the Act came
into existence. The
Act was passed by
Parliament and received
the assent of President on
September 11, 1989 and
came into force with
effect from January 30,
1990. A number of Dalit
and human rights
organisations feel that
now time should be
utilised to critically
review the performance of
the State and its various
limbs in implementation
of the Act
that the POA Act and the PCR Act
and meeting the challenge of reaching fully, promptly and effectively
their benefits to the SCs and STs and
ensuring their proper and effective
implementation at the various police
stages upto chargesheeting in courts,
and at the trial stage in courts is a
most deserving and essential area for
activism in the best established traditions of India’s higher judiciary.
The last word
A recent article on the website of the
China Institute for International
Strategic Studies (CISS), one of the
top ten Chinese thinktanks, shows
that those who bear ill-will towards
India have identified as a critical
weakness of India its caste-based
exploitativeness. It is in the interest
of our country’s security and integrity to see that this weakness, of which
an important manifestation is atrocities along with untouchability, is
fully and finally removed.
After a long wait a ray of hope
emerged when in September 2009,
addressing a two-day conference of
state ministers in-charge of SCs, STs,
BCs and social justice, Prime
Minister Dr Manmohan Singh
expressed rude shock over the low
rate of convictions in the cases of
atrocities against SCs and STs. The
prime minister further asked the
state governments, the chief ministers and the state ministers to give
more attention to this issue, ensure
conduct of meetings of state and district level vigilance committees on a
regular basis and pursue the cases of
atrocities on priority. It is to be
earnestly hoped that this initiative
will be pursued and carried to the
logical conclusion of zero tolerance
of atrocities against SCs and STs and
untouchability. It is also envisaged
that the services, energies and experience of the large number of Dalit and
human rights activists working for
this cause in each state will be
utilised and action will be taken on
the various detailed measures
including proposed amendments to
the Act.
Footnotes
1. P. S. Krishnan, “Empowering Dalits for
Empowering India — A Road Map’’. Delhi:
Dr.B.R.Ambedkar Chair in Social Justice,
Indian Institute of Public Administration /
Manak Publications.
2. Based on and expanded from my presentation on 18.12.2005 at the National Judicial
Colloquium on Disability and Law held on
December 17-18, 2005 at New Delhi, organised by the Human Rights Law Network,
New Delhi.
–The author is former Secretary,
Government of India; and
presently Chief Adviser, National
Coalition for Strengthening the PoA
Act and its Implementation; Chairman,
Peoples Commission against Atrocities
on Dalits; Chief Patron, National
Action Forum for Social Justice;
Chief Adviser, National Dalit
Election Watch; and has been in
the field of social justice for
more than 50 years
19
DALIT RIGHTS
THE STATUS OF IMPLEMENTATION AND NEED FOR AMENDMENTS IN
PREVENTION OF ATROCITIES ACT, INDIA
In the context of 20 years of
SC&ST (Prevention of Atrocities) Act, 1989
Dr. Sirivella Prasad
250000
Extent of atrocities
200000
Given the observation made by MHRC in its report
2002 that "under reporting is a very common phenomenon and police resort to various machinations
to discourage Scheduled Castes/Scheduled Tribes
from registering case, to dilute the seriousness of
the violence, to shield the accused persons from
arrest and prosecution" – extent of atrocities on
SCs as per NCRB
100000
50000
2007
2006
2005
2004
2003
2002
2001
0
Year
19922000
No. of Atrocities on SCs
150000
25
19.6
15
13.1
10.3 10.5
8.6
10
5.2
5
5.1
2
6.2
4
1.4
0.7
1.7
Cr
ed
it
Hu
ng
er
Fe
D
st
ev
iv
Po
al
el
an litic
op
al
m
d
PD
P
c
en
S
t G ultu artic
ra
ov
ip
l
a
er
pa
tio
nm
r
n
Pr
en ticip
ac
at
t
P
tic
io
ro
n
e
gr
of
am
U
m
nt
e
ou
ch s
ab
ilit
W
y
itc
hc
ra
ft
R
ob
be
ry
0
Atrocities related to
20
7.5
4.1
Em
pl
oy
m
en
t a Lan
d
nd
W
ag
es
W
at
e
Ho r
us
i
Ed ng
uc
at
io
n
He
al
th
Type of
atrocities
against
Scheduled
Castes
Percentage
20
DALIT RIGHTS
Atrocities–
States' Ranking
State
Rank
Rajasthan
I
Gujarat
II
Madhya Pradesh
III
Kerala
IV
UP
V
Andhra Pradesh
VI
Karnataka
VII
Tamilnadu
VIII
Orissa
IX
Sikkim
X
Maharashtra
XI
Pondicherry
XII
Bihar
XIII
Haryana
XIV
J&K
XV
What it violates
■
■
■
■
■
■
Constitutional safeguards (economic, social, educational, cultural,
political, service)
Laws enforcing equality and removing disability
● Untouchability Offences Act 1955
● Protection of Civil Rights Act 1955
Laws creating deterrence against physical violence
● SC/ST (PoA) Act 1989
Laws eliminating of degrading and humiliating customary practices
● Employment of Manual Scavengers and Construction Dry Latrines
(Prohibition) Act 1993
● Devadasi System Abolition Act
Laws preventing control over fruits of labour
● Bonded Labour System (Abolition) Act 1976
● Minimum Wages Act 1948
● Equal Remuneration Act 1976
● Child Labour (Prohibition and Regulation) Act 1986
● Inter-state Migrant Workmen (Regulation of Employment and
Conditions of Service) Act 1979
Laws curbing unequal distribution of economic assets
● Land reforms laws
● Debt relief legislations
"The incident of assault and abuses is nothing but because he [the victim] belongs to SC and he is lower in the eye of [the] upper caste Reddy
person accused. The offence is not only against [the victim] but against
society and ultimately the Nation"
– N. Balayogi, Special Sessions Judge - Judgement in Tsundur case
55/S/2003
This quote expresses the very essence of the SCs & STs
(Prevention of Atrocities Act)
Objective of the PoA Act
Introducing the Bill in Parliament
The normal provisions of the existing laws like, the Indian Penal Code and Protection of Civil Rights Act, 1955
have been found inadequate to check atrocities continuing the gross indignities and offences against
Scheduled Castes and Tribes. Recognising these, introducing this Act - Scheduled Caste and Scheduled
Tribe Prevention of Atrocities) Act, 1989
The preamble of the Act states
" to prevent the commission of offences of atrocities against the members of Scheduled Castes and Tribes, to
provide for special courts for the trial of such offences and for the relief and rehabilitation of the victims of
such offences and for matters connected therewith or incidental thereto."
www.combatlaw.org
21
DALIT RIGHTS
What are the features of SC/ST (PoA) Act
■
■
■
■
■
■
■
■
■
■
The term "atrocity" (clarification of home ministry)
Creation of new types of offences
● Enlarges the area of criminal liability and includes several acts of omissions, which were neither covered
under IPC nor PCR Act.
Commission of offences only by specific persons
● Defining paradigm of this Act lies in the caste identification of both the offenders and victims
Protection of various kinds of atrocities
Administrative measure
● Special courts, provision for appointment of special PP
Special feature of the Act
● Extern potential offenders
● Attachment of movable or immovable property or both properties
● Prohibits grant of anticipatory bail
Enhanced punishment for some offences
Enhanced minimum punishment for public servant
Compensation for victims or their legal heirs
Various preventive measures
Gaps in implementation of SC/ST PoA Act
1989 AND RULES 1995
1. Under reporting of the cases under the Act and deterred from making complaints of atrocities
2. Cases not registered under appropriate sections of the PoA Act
● 67% of cases during 1992-2000 and 64.9% during 2001-2007 were not registered under SC and ST
(PoA) Act - NCRB 2007
3. Delay in filing chargesheet
●The high court of Andhra Pradesh in an interim order on the writ petition observed - "the statistics furnished by the director general of police shows that one case registered under this Act is pending investigation for the last almost six years, 4 cases pending investigation for last five years, 18 cases are pending
investigation for over four years, 31 cases are pending investigation for over three years. 190 cases are
pending investigation for almost two years and 805 cases are pending investigation for about one year."
WP No. 1019 of 2006 filed by Sakshi
4. Not arresting accused
● Justice Punnaiah Commission observed that the sub-inspectors or circle-inspectors did not arrest the
assailants who committed the atrocities even though, the former recorded FIRs and registered cases.
5. Accused are invariably released on bail
● In 50-60% cases the judge invariably concluded that SC/ST people's evidence is not valid because they
are an interested party - NCSC
6. Filing false and counter cases against Dalit victims
7. Compensation prescribed under the Act is invariably not paid
● NHRC Report (2002) observes that "the breach of duties by civil administration is committed in the following manner:
● Not conducting an enquiry, thereby evading duty to give relief and compensation,
● Making false promises to give compensation and delay in distributing cash compensation,
● Not providing allowances, such as T/A relating to trial and investigation for witnesses and victims, mainte22
DALIT RIGHTS
nance expenses and D/A, medical expenses, etc.
8. No access to legal aid
NCSC has found that no such special legal assistance as envisaged by the Act of 1989 was extended to
SCs and STs even in one of the thousands of cases looked into by the body
9. Investigation not done by the competent authorities
As per the NHRC report the progress of investigation of cases by police analysed from the official
data indicates:
● Number of charge-sheeted cases was 53.04%,
● 22.54% of cases were closed after investigation
● 24.42% number of cases pending with police at the end of the year
● 30,350 cases registered during 2000 as many as 8,336 cases were closed after investigation without
any trial
● 9,027 cases where still pending investigation.
● 1,43,505 cases in courts for the year 2000, 1,32,268 cases were pending, 9,996 were acquitted and
● 1,241 ended in conviction.
10.Non-implementation of statutory provisions
Provisions
States
implemented
States not
implemented
Rule 3–Precautionary and Preventive Measures
11
23
Rule 8–SC/ST Protection Cell
17
17
Rule 9–Nodal Officer
29
5
Rule 10–Special Officer
14
20
Rule 15 (1)–Contingency Plan by State Government
9
25
Rule 16–State Level Vigilance and Monitoring Committee
21
13
Rule 17–District Level Vigilance and Monitoring Committee
21
13
Section 14 Special Courts
9
25
Source: Reports of Ministry of Social Justice&Empowerment
11. Seeking justice before the law
12.Advisories issued by ministry of SJE and ministry of home affairs
Need for campaign to strengthen PoA Act
and its implementation
Need
● to critically review its performance in the realisation of its objectives
● To incorporate some judicious amendments to the SC/ST Act, 1989 and Rules, 1995 based on
20 years of experience
● To address non-implementation
■ SO
● Initiated a national coalition for strengthening of PoA Act
■
www.combatlaw.org
23
DALIT RIGHTS
Proposed draft amendments
The proposed amendments can broadly be divided into the following categories
1. Amendments proposed to enhance punishment
2. Amendments proposed for omission of certain words
3. Amendments proposed for addition of new types of offences
4. Amendments proposed for insertion of new words
5. Amendment proposed to strengthen section 4
6. Scope of definitions given in the Act
7. Amendments proposed for special courts and special prosecutors
8. New chapter on rights of victims and witnesses as chap II A
9. National/state protection and monitoring authority
1. Amendments proposed to enhance punishment
Bringing punishment at par with IPC
Offence under section 3(1)
■
■
Punishable with imprisonment for a term which shall not be less than six months but which may
extend to five years and with fine.
Proposed amendment: punishable with imprisonment for a term which shall not be less than two
years but which may extend to seven years and with fine.
2. Amendments proposed for addition of new types of offences
Inserting new offences in existing sections
■
■
■
Manual scavenging, refusal to pay wages in accordance with the minimum wages prescribed by the government or contract wages for the labour, such contract wages not less than the minimum wages fixed by the
government - in sec 3(1)(vi)
After the poll causes injury, insult or commits any offence under this Act against a member of Scheduled
Caste and Scheduled Tribe for voting or not voting to a particular candidate or for voting in a manner
provided by law - sec. 3(1)(vii)
Files cases against the victims of atrocities or his/her relatives shortly before or after the offence of atrocity to force them to desist them from making complaint or withdraw a complaint, or files cases against the
witnesses or his/her relatives shortly before and after the offence of atrocity to prevent them from deposing
evidence or to force them to depose false evidence in any case of atrocities - sec. 3(1)(viii)
New sections for the offences
Social economic boycotts and blackmails, grievous hurt, kidnaps, or wrongfully restrains, discriminates
against or humiliates any children in anganwadis or mid-day meals programme in schools or any other educational institutions, rape, minor girl rape, mass rape, gang rape, murder, mass murder
●
3. Amendments proposed for omission of certain words
●
24
delete the words 'intent' and 'intention' or 'on the ground' from sections 3(1)(ii), 3(1)(x),
DALIT RIGHTS
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'
from section 3(1)(x).
4. Amendments proposed for insertion of new words
●
In sec. 3(2)(v), 3 (2)(vii) -public servant, Sec 10(1), sec 21 (2) (i)
5. Amendment proposed to strengthen section 4
●
Defined negligence
6. Scope of definitions given in the Act
●
only for the purpose of this Act also include
● members of the any of the castes in the schedule who profess a religion other than Hinduism,
Sikhism, or Buddhism
● who migrated to other states for the purpose of manual labour but not included in the scheduled
of the state
7. Amendments proposed for special courts and special prosecutors
Establish exclusive special courts and appoint exclusive special PPs
● Day to day trial and should complete within 90 days after chargesheet
● Special courts are empowered to take cognizance of offences
● Spl court judge report to chief justice of HC
● Joint trail or simultaneous trail other cases filed against victims - counter cases
● Post of judges and public prosecutors should not keep vacant more than 30 days
●
8. New chapter on rights of victims and witnesses as chapter II A
Mandatory registration of FIR, investigation and inquiry, protection, medical examination and reports,
chargesheet, trial, documents and information
●
9. Establishing national monitoring and enforcement authority
Administration ignores social boycott of Scheduled Castes which leads to denial of employment and
access to basic necessities like ration shop, refusal to buy or sell any goods in the village, etc
●
– Dr Prasad is general secretary, NDMJ-NCDHR
Courtesy: National Coalition for Strengthening PoA Act
www.combatlaw.org
25
DALIT RIGHTS
Implementation of SC/ST (POA) Act and rules
Recommendations for better enforcement
Stage of
the case
Gaps in enforcement
Recommendation
Responsibility
At the stage
of incident
Pressure on victims for
not lodging the complaint;
Threatening victims not to
speak about the incident;
The DGP/RDO/District
Magistrate/SP do not visit
the place of occurrence as
per Rule 6. Rather, constable/SI/CI visit the place of
occurrence based on gravity of offence;No immediate relief / protection is
given to the
victims;Tampering of the
evidence;Registering
counter cases of other
caste people without registering the case of Dalit
victims;Giving early date
and time to the dominant
caste complaint than a
Dalit victim's case and
registering the counter
case first.
Mechanism to monitor the implementation of
Rule 6. The SP should inform the DGP/IG
and Convener of the State Monitoring and
Vigilance Committee (SMVC) regarding incidents, date of visit, measures taken. (As per
crime records, 3,000 cases are being registered every year which means 9-10 cases per
day in the state. Officers can easily monitor
9-10 cases per day);
Immediate relief and protection to the victims (In para 28 of AP police guidelines on
SC/ST (POA) Act, a clause should be included that not visiting /providing immediate
relief and protection to the victims and
informing the DGP/and convener of SMVC
can be considered as willful negligence of
duty of the concerned district level officials
and state level officials and action can be initiated as per section 4 of POA Act /state
level);
Police department should evolve guidelines
to register counter cases like the concerned
SHO should conduct preliminary investigation on the counter complaint and inform the
concerned authorities;
Registering the case on the counter complaint
with the permission of higher authorities;
The competent authority as per the Act can
carry out the investigation of both cases at a
time.
Permission to arrest the accused in th counter
cases;
Ensure the district superintendent promptly
visits place of occurrence of atrocity and fulfills his responsibilities under Rule 12(1), (2)
& (3), of POA Act particularly
(Recommendation -- Dalit Human Rights
Monitor (DHRM), SAKSHI Human Rights
Watch 2003);
In each district appoint a special superintendent of police (SP) depending on the intensity, frequency and distribution of atrocities in
the district. The official is to be specially incharge of investigating atrocities under the
Act. (Recommendation -- Dalit Human
Rights Monitor (DHRM), SAKSHI Human
Rights Watch 2003);
For each district, these special SPs should
also be empowered to receive and address
complaints of violations and complaints of
official misconduct under the Act.
(Recommendation - DHRM, SAKSHI Human
DGP/state level
vigilance
monitoring
committee
26
2. DGP
3. SHO
DSP/RDO/SP
DGP
Commissioner
SW/Collector
DALIT RIGHTS
Rights Watch 2003);
In all cases of atrocities, immediate
relief, rehabilitation and compensation
should be provided keeping in view
the mandate of Parliament (National
SC/ST Commission Report, 1998-99)
At the stage
of complaint
At the stage
of FIR
Delay in filing the complaint;
Refusal to write the complaint of the victims by the
police officials;
Writing the complaint in
favour of the accused without giving necessary
details and not reading out
to the complainants;
Inappropriate behaviour
with the victims (threatening, not attending immediately);
Registration of the complaint based on the perpetrators' version.
Issue receipts of all the complaints of
the victims immediately, indicating
time and date with a copy of the complaint;
After reading out the complaint to the
victim the copy should be signed by
two witnesses along with the victim;
Refusal to record /write the complaint/
not behaving properly shall be considered as willful negligence besides nonfiling of case or registering case not
under proper sections as negligence in
para 28 of the AP Police guideline on
SC/ST Act;
All complaints given by Dalits should
be registered as an FIR, by forbidding
discretionary powers to the officer
responsible for registering complaints.
(Recommendation - DHRM, SAKSHI
Human Rights Watch 2003);
State governments may notify a lady
officer from among the staff posted in
each block, such as the Social Welfare
Officer or Women & Child
Development Officer to entertain complaints regarding the ill-treatment of
and violence committed against SC
women not registered by the competent authority and officially pass it on
to the concerned authority with a copy
to the District Magistrate for taking up
necessary investigation (NHRC 2002).
SHO/SP
Refusal in registering an
FIR by police officials;
Cases not registered under
proper sections;Not including necessary details in the
FIR (facts, figures,
words/delete the names of
the accused /weapons used
/accused list, their details);
Misleading the victims by
not registering an FIR; Not
All the FIRs should be scrutinised at
the district monitoring vigilance level;
Evolve mechanism at district level to
scrutinise all registered FIRs, whether
registered under proper sections or
not, all details of complaint are included etc and whether necessary action
was initiated against erring officers and
send the report to DGP/CSMVC;
Should set up SC/ST cell in all police
stations to book FIRs. (Punnayya
DMVC/SP
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SHO/SP
DGP/SVMC
DGP
SHO/SP
SP/DGP/
SVMC
SP/DGP/ SVMC
27
DALIT RIGHTS
issuing copy of the FIR to
the victims as per SC/ST
(PoA) Rules 1995.
28
Commission, 2002)
All offences against Dalits by nonDalits should be registered under
the SC/ST (PoA) Act.
(Recommendation - DHRM, SAKSHI Human Rights Watch 2003);
Prompt disciplinary and legal
action under Section 4 SC/ST (PoA)
Act should be taken against police
who refuse to register cases under
the Act as they are directed to do
under Rule 5(1). (Recommendation
- DHRM, SAKSHI Human Rights
Watch 2003);
All cases registered under
Protection of Civil Rights Act to be
r/w. SC/ST (Prevention of Atrocities)
Act. (Recommendation - DHRM,
SAKSHI Human Rights Watch
2003);
In case the office in-charge of the
concerned police station does not
register an FIR on the basis of a
complaint but the FIR is registered
at the instance of the superintendent of police or special enquiry cell
or the court and the charge sheet is
submitted before the court, appropriate action under the Act or
departmental action as the case may
be, should be taken against the officer in-charge of police station for
not registering the case in time.
(National SC/ST Commission
Report 1998-99);
Involvement of competent NGOs
with good track record and known
commitment to the welfare of
Scheduled Castes is necessary to
counter official apathy and bias in
dealing with cases of atrocities, provide necessary feedback to the
implementing agencies and extend
support to the victims in registration of cases, pursuing prosecution
at various stages and rehabilitation
after the incident, besides intervening in time to prevent such violence
(NHRC 2002);
A copy of an FIR should be provided/ dispatched or made available to
the complainant at earliest possible
means as per the 416-11 F of AP
Police Manual;
Direct the police to provide a copy
DALIT RIGHTS
of remand report, charge sheet and
final report to the victims and
witnesses.
At the stage
of arrest
Not arresting the accused
immediately;
Not arresting all the accused
and giving space to abscond/
to get anticipatory bail;
Police informing the accused
before registering the case;
Giving bail and anticipatory
bail;
Arresting Dalit victims in
counter cases instead of arresting dominant caste persons.
Superintendent of Police, District
Monitoring and Vigilance Committee
(DMVC) should review the status of
arrest at regular interval and inform it
to state level IGP and SMVC
IGP/SVMC
At the stage
of investigation
Not investigating the case in
time;
Investigation is not being done
by a competent authority;
All the victims, witnesses are
not covered under investigation;
Police officials are not entering
all the details narrated by the
victims and witnesses in the
statements;
Victims are not provided protection during and after investigation;
Not informing the victims and
witnesses about the date and
time of IO's visit;
Statements being recorded by
lower level officials but the
charge sheet is filed by the
competent authority;
Delay in providing documents
(postmortem certificate,
wound certificate) to the victims;
Completing the investigation
in counter cases faster than the
investigation in SC/ST (PoA)
Act cases;
Non- cooperation of
victims/witnesses/ compromise/ death of accused;
Recording statements without
meeting concerned persons.
There should be a time limit to provide/collect necessary medical certificates and other documents and should
be consider as negligence if exceeds
the time;
PCR cell should have mechanism to
review and scrutinise the reports
based on FIR/ details of
complaint/statements/ documents and
action to be initiated against the erring
officials.
After investigation, if retaliation takes
place, the IO must be made responsible for the incident;
Special investigation cells may be created for speedy investigation of SC/ST
atrocity cases (Punnyya Commission
Recommendations 2002);
In cases under SC/ST (PoA) Act,
ensure investigating officer is no less
than the Deputy Superintendent of
Police (DSP), pursuant to Rule 7(1).
(Recommendation - DHRM, SAKSHI
Human Rights Watch 2003);
The case of atrocity should be investigated by an experienced DSP, even if
he is not having a territorial jurisdiction for normal day-to-day work.
(SC/ST Commission Report 1998-99)
SP
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IGP
SP/DGP
DGP
DGP
29
DALIT RIGHTS
At the stage
of chargesheet
At the stage
of trial
At the stage
of judgement
30
Delay in getting approval
from higher authority;
No corroboration between
the statements collected and
chargesheet;
Deleting sections of SC/ST
PoA Act in chargesheet;
No mechanism in judiciary
to monitor filing of
chargesheet;
Charges are framed without
looking at the related corroboration (corroboration
with chargesheet and FIR);
Outsourcing preparation of
chargesheet.
The District Judge and SP should
review status of the chargesheets;
Legal opinion, higher officials'
approval are not needed in all cases. If
needed, time limit must be there, the
persons involved must be held responsible accountable for the delay;
The Special Enquiry Cell set up under
the provision of rule 8 of the Rules 1995
should be given special powers to register the FIR, investigate and submit
charge sheet/final report before the special court. The cell should be provided
at least primary requirements like sufficient stationery, typewriter, telephone
and vehicles, etc. (SC/ST Commission
Report 1998-99)
No special courts / PPs in
all districts;
Inordinate delay in trial;
Certain witnesses are not
involved at the time of trial;
No briefing to victims and
witnesses by PPs and not
giving sufficient time;
No information was given
to victims/ witnesses about
the date and time of trial;
Victims and witnesses are
pressurised to turn hostile.
There should be time limit for trial;
Setting up special courts/ panel of PPs
in all districts;
Director of prosecution should review
the performance of PPs and submit
report to SMVC and action should be
initiated against under performing PPs;
Collector and SP should review the
trial process and PPs and IOs to be
made accountable for the absence of
victims and witness during the trial;
SPs and collectors to be made accountable for victims and witnesses turning
hostile;
Proper training should be given to the
witnesses one day prior to the trial and
IO should take them to the public prosecutor one day before the trial
(Punnayya Commission 2002);
The Collector should review at the end
of every quarter about the performance
of PP and send it to the state government to assess the number of acquittals. (Punnayya Commission 2002);
States need to constitute exclusive special courts for dealing with atrocity
cases in districts. Special public prosecutors for this work may be selected on
the basis of their competence and commitment and their level of remuneration should be adequate to sustain their
interest in work (NHRC 2002).
No appeal from
PPs/Collector/SP
PPs /Collector/SP must ensure further
appeals in the higher courts and to be
DJ/SP/DGP/
SVMC
DGP
DGP/Govt
Gov
Gov
Dir Prosecution
Collector/SP
SMVC
SP/DGP
Collector
Collector/SP
DALIT RIGHTS
At the stage
of TA / DA/
compensation
and follow up
made accountable for not filing appeals;
DMVC should review the judgements and
take necessary steps for appeal;
PPs /Collector/SP must ensure for better performance of the special courts, and to
improve the rate of conviction, as per the
Rule; The Chief Justice of high court should
depute a sitting high court Judge to review
the working of the special courts and judgements delivered by these courts, at least once
in a year. The judicial review would ultimately highlight all those legal and administrative
aspects/facts responsible for acquittal of
accused, weak prosecution and the quality of
judgements (SC/ST Commission 1998-99)
Collector
CJ of HC
Victims not paid
TA/DA/wage during
investigation, trial;
Victims not paid medical
expenses;
Victims not paid compensation and immediate
relief as per SC/ST (PoA)
RULES 1995.
Appointment of assistant social welfare
officier at mandal level and made accountable for dispersing the TA/DA /minimum
wages and compensation and should be
monitored by the Collector and DMVC;
Separate funds to be given to PS/courts
towards TA/DA of victims and witnesses at
FIR investigation and to be monitored by
the SP/DJ;
Necessary arrangements for providing travelling and maintenance expenses, reimbursement of the payment of medicines, special
medical consultation fee, blood transfusion,
etc. should immediately be made to the victims of atrocity. (SC/ST Commission
1998-99);
State/ National Human Rights Commission
may monitor provisions regarding payment
of compensation to victims of atrocities and
their rehabilitation (NHRC 2002);
States may be directed to make the District
Magistrate solely responsible for ensuring
that the compensation money given to the
victims is effectively utilised to provide sustainable rehabilitation;
The parameters of such rehabilitation may be
laid down in the manual. State and district
level monitoring and vigilance committees
may monitor the status of rehabilitation
(NHRC 2002);
Special rapporteurs may report to the State /
National Human Rights Commission about
the status of rehabilitation and morale of victims of atrocities in important cases
(NHRC 2002).
1. SVMC
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31
INTERVIEW
'Empower Dalits for
Empowering India'
Having played an
instrumental role in
formulating the special
component plan for SCs,
processing the proposal
for the appointment and
facilitating the functioning
of the much talked about
Mandal Commission and
conceptualising and
operationalising the SC
and ST (PoA) Act, this
civil servant has always
been behind-the-scene of
some of the historical
initiatives that have
positively impacted the
lives of millions of Dalits
in India. PS Krishnan
dwells at length on the
genesis, relevance and
implemetation of the PoA
Act in conversation with
Harsh Dobhal and
Vipin Mathew Benjamin
You played a major role in bringing
the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act
into existence. How was your experience while doing this -- what did you
go through, how did you perceive the
problems as to put them down in
terms of an Act to seek remedies?
The genesis of the PoA Act has to be
traced in the spate of atrocities that
took place in the sixties. A very major
incident in this connection was the
Kilavenmani massacre in Thanjavur
district in which 42 Dalits were burnt
to death on the night of December 24,
1968. The issue was rooted in an agriculture wage dispute. The Dalits,
who constituted the main community of agricultural labourers in that
area sought better wages than what
they were paid and the landlords but
as usual resisted and resorted to
measures which created tensions. As
a result, these Dalits, mainly women,
children and old people, were
burned to death. Though prior to
that the Ramanathapuram riots had
taken place in 1957 but they did not
receive much attention at the national level as Kilavenmani did. Another
incident was the killing of a Dalit boy
named Kotesu in Kanchikacherla village in Andhra Pradesh in 1969.
Similar crimes occurred in various
other states too. Actually atrocities
on SCs had begun earlier but they
were not noticed so much.
One of the ministers in Andhra
Pradesh government at that time, as
to justify the killing of the Dalit boy,
remarked that this is how thieves are
dealt with in villages. This insensitive remark added fuel to the fire for
it is only a court that can come to a
conclusion whether a particular person committed theft or not. Nobody
can arrogate to himself the authority
to determine that a boy has committed theft and to summarily execute
him. Such incidents resulted in clamour in Parliament.
●
32
● You were already a civil servant
by then?
Yes. I joined the IAS in 1956 and concentrated on issues pertaining to the
plight of Dalits and, through proactive and sensitive administrative
action, bringing justice to them.
I came to the centre as a joint secretary in 1977 in the ministry of commerce/industries. In 1978, the government created a new post of the
joint secretary in the ministry of
home affairs to deal with SCs and the
BCs. This was in the backdrop of the
spate of atrocities on SCs that took
place in north India from 1977
onwards following the Lok Sabha
elections and the resultant regime
change. This gave some sections of
people in the north a green signal for
committing atrocities on Dalit community. The most notorious instance
was the Belchi massacre in 1979.
Prior to this, and after
Kilavenmani and Kanchikacherla,
the government had instituted a system of monitoring the atrocities
against SCs. The IPC crimes committed against Dalits were monitored,
particularly murder, rape, arson, and
mischief. Under these heads and a
fifth, namely, "other crimes", monthly
reports and figures were obtained
from states and the centre was doing
some sort of overseeing to furnish
replies to questions in Parliament. I
took over the post of the joint secretary and used this opportunity to initiate a number of measures required
for the welfare of SCs. One of them
was dealing effectively with atrocities another was to conceive and create the special component plan (SCP)
for scheduled castes for their economic development and securing
their share in the planned development of the country, both in physical
and financial terms. A new scheme of
central assistance to the scheduled
caste development corporations in
states was also launched. Some of the
states had already got such corporations and the central assistance revitalised them. The scheme enabled
such corporations to be set up afresh
in other states. Then there was the
introduction and commencement of
special central assistance to the state
special component plans. Regarding
atrocities, in addition to getting
monthly reports and statistics, I
began the practice of actively pursuing with the states specific measures
to be taken by them, especially in
major cases of atrocities and also vis-
INTERVIEW
iting many of the villages where
atrocities took place.
Atrocities continued unabated
after the next regime change in 1980.
During this period, the Pipra atrocity
took place in Bihar, on the intervening night of February 27-28, 1980.
That was after late prime minister
Indira Gandhi had come back to
power. Immediately after Pipra, I
prepared a letter for the home minister along with an important enclosure addressed to the chief ministers
of the states. This letter analysed
atrocities -- why they were taking
place, how they were rooted in the
fact that SCs are agricultural labourers, their helplessness, their desire
for the fulfillment of some of their
demands regarding land, wages, etc,
and how, when they pursue their
legitimate aspirations, atrocities were
inflicted on them. Resistance to the
practice of "untouchability" and their
attempt to protect the honour of their
vulnerable women also became
provocations for atrocities on the SCs
and STs. This letter along with its
enclosure went to all the state chief
ministers, suggesting preventive,
punitive and rehabilitative measures
in respect of atrocities and personnel
measures, which means how to make
the administrative system of governance more sensitive to the problems
of SCs and STs including atrocities,
but not only atrocities. These also
provided the raw material from
which later on the rules under the
PoA Act took shape. I personally
looked into every single case of atrocities, especially massacres, rape,
arson and grievous hurt.
Thus, cases of atrocities got a certain salience. As a result of the system
of close follow-ups by me at every
stage and communications from different levels and discussions and
meetings, the Pipra case was tried
very fast by the standards of the
Indian judicial system, which does
not only mean the courts, but also
covers the investigative process, the
prosecution process, actual trial and
what happens in the court. Pipra case
was disposed off in about 16 months
after the massacre took place. A very
large majority of accused were convicted and sentenced to life imprisonment and some others to different
terms of incarceration. Along with
this, earlier cases languishing for juswww.combatlaw.org
tice like Belchi were also pursued in
speed. We could secure conviction in
the Belchi case too. Though there was
no PoA Act at that time, on our suggestion, the state government set up
special courts and appointed special
prosecutors for specific cases of atrocities. This helped in ensuring that
these cases were quickly disposed off.
In the case of Belchi, two of those convicted were sentenced to death.
Perhaps, that was the first time that
anyone was sentenced to death for
massacring SCs in this country. There
was another incident in Hanota,
Madhya Pradesh which was a case
where defiance of "untouchability" in
respect of entry into a temple led to
Among the educated
sections of SCs, there is
a greater amount of
awareness now. They
clearly perceive the
inequity of their lot. This
process had its beginnings
much earlier, even before
Dr. Ambedkar arrived.
He gave it a national
momentum, a perspective
and a philosophical base
an atrocity, in which two of the convicted were sentenced to death. Then
there was a case in Gujarat where a
boy called Sakhrubai, who for daring
to give expression to his musical talent during the navratra ceremony
was burned to death because his
singing on that occasion was considered a sacrilege. That case was disposed off in 10 months as a result of
the regular case-by-case follow up.
Three of the convicts got life imprisonment in that case and some of the
accused were acquitted. These
instances show how close case-bycase follow-up by the centre and
focused action by the state governments can secure quick trials.
After death sentences in cases like
Belchi, has there been any recurrence
of atrocities?
After severe punishments in the
●
above mentioned and other cases,
during 1981-82 there was a lull for
some time. For such chronic diseases,
a one-time dosage is not enough. The
dosage has to be repeated regularly so
that the association of severe punishment with atrocities against vulnerable sections gets firmly imprinted in
the minds of potential committers of
barbarity. As the memory of Belchi
and Pipra faded away, atrocities
against Dalits were again on the rise.
In 1988, there were two gruesome acts
in Nonhi-Nagwa and DamuhaKhagri Tola areas of Bihar. But certainly there was a salutary effect for
some time after convictions and punishments. If punishments swiftly follow a crime, and the punishment is
tailored to the crime, that is, it is as
severe as the crime is brutal, and if it
is consistently done in every state,
then it will have a long-lasting effect.
But even if massacres may stop,
there are still various types of cruelty,
for example, economic boycotts.
There are ample ways of killing without shedding blood. So, this is a
much larger problem. It is not just a
question of penal punishment, but
how we ensure that the SCs cease to
be dependent on others for their
livelihood. It is not enough that two
percent of SCs become clerks, officers
etc. Majority of Dalits cannot seek
reservation because they are not even
matriculates. Many of them have not
even entered school or have dropped
out early. So, they will continue to be
dependent and vulnerable unless the
State, by a combined central and
state-level effort, ensures that every
rural SC family has a piece of land of
its own, and their lands are brought
under irrigation and are developed,
so that they get two or three crops a
year and, consequently, they do not
have to stretch their hands before
others for their daily livelihood as
wage-labourers. It is possible provided this is taken up as a mission and
receives the continuous top priority
attention at the highest echelons of
governance from both elected political executives as well as permanent
civil service executives. If this is
done, then in many places SCs will
be able to gather enough courage and
strength to say no to the invidious
practice called "untouchability" and
refuse to submit to it. Today they are
not able to do so because they have to
33
INTERVIEW
think of the next day's wages. So
every Dalit family, which is rural,
must have land of its own and developed mainly through community
irrigation. This will require both centre and states to jointly take proactive initiatives and the former
should not wash its hands off its
responsibility by taking the plea that
land is a state subject under the seventh schedule of the Constitution.
Then comes education along with
this, so that the next generation of
Dalits can move out to other occupations. Agricultural labour is not an
occupation of choice. Even farming,
many owner-farmers feel, is not an
occupation of choice. So the State
must help this whole community of
Dalits to move out of what has made
them distinctively a separate underclass, i.e., out of agricultural labour,
either by becoming self-sufficient
owner cultivators or by moving out
to other occupations with the help of
education. But, we cannot wait for
this process to be completed. Even
while it is in progress, we have to
take action to eliminate atrocities and
"untouchability".
STs are also subjected to atrocities
but not to the same extent as SCs
because the bulk of STs live in areas
where they constitute the majority of
the population. So physical attack by
other sections of society cannot take
place there, but they are exploited
and harmed by means other than
atrocities. STs who are not in their
strongholds are in the same vulnerable position as SCs.
I left the scene in 1982 on completion of my term. I am not aware
whether thereafter case-by-case follow-up was pursued along with general monitoring. Atrocities continued
in different parts of the country,
mainly because the basic contradictions in the centuries-old Indian
socio-economic system, continuing
till date, had not been holistically and
comprehensively addressed and also
perhaps case-by-case follow-up by
the centre with the states could not
be maintained at the same tempo.
The agony of the SCs was reflected in
Parliament. Then in 1987, in his independence day speech at the Red Fort,
the then prime minister Rajiv Gandhi
referred to atrocities and said that if
necessary, he would bring a legislative enactment to provide for strin34
gent measures against atrocities on
SCs and STs and to remove any
drawbacks in the legal structure
dealing with such crimes against
Dalits. This was the first time an Act
was spoken of. At that time I was in
Hyderabad and was soon called to
Delhi to take charge as the special
commissioner for scheduled castes.
In this position, which was not executive but was in the nature of "watchdog" of the implementation of constitutional safeguards for the SCs, I
dealt with all aspects pertaining to
the communities including reservation, but I took atrocities against SCs
STs are also
subjected to
atrocities
but not to
the same
extent as
SCs because
the bulk of
STs live in areas where they
constitute the majority of the
population. So physical attack
by other sections of society
cannot take place there, but
they are exploited and harmed
by means other than atrocities
and STs as a very important part of
my work. I visited a number of
places in different parts of the country where atrocities had taken place
and to oversee conditions existing
there and the quality of rehabilitation. After the Damuha-Khagri Tola
massacre of 11 Dalits, I conveyed to
various authorities the need for
quickly enacting the proposed legislation directly addressing atrocities
against SCs and STs. Hectic consultations with law ministry officials led
to a detailed exercise of identifying
IPC crimes and drafting of the bill
finally.
In August 1987, an incident happened in a place called Bendigere, in
Belgaum district of Karnataka where
five people, four of them Dalits were
beaten up black and blue. Obnoxious
things which are even difficult to
mention were put into their mouths.
Forcing SCs and STs to drink or eat
any inedible or obnoxious substance
is now listed in the PoA Act as an
atrocity though it is not in the IPC.
There are some more examples
like social boycott and economic boycott or social and economic blackmail. These are real acts frequently
experienced by SCs in villages. Social
boycott includes prohibition on barber shops and laundries to provide
services which till then are provided,
prohibition on tea-shops to serve tea
and prohibition on shops on selling
any commodity to SCs. Economic
boycott is denial of wage-employment to SCs who are mostly wagelabourers. So these are crimes which
have not been included in the Act till
now. Their inclusion is among the
proposal for amendments which is
on the anvil.
Finally, the Act was passed in
September 1989 and came into force
on January 30, 1990. With whatever
limitations it had, this Act was an
important step forward. This was the
first time that the Indian legal system
has directly listed offences against
Dalits which constitute atrocities.
The term atrocity against SCs and
STs entered the Indian penal language for the first time. Even before
Dalits could realise the significance
of this Act, non-Dalits realised that
this Act is something which they
should take adverse note of.
The Act has certainly helped in
giving a feeling that it provides a
statutory base for looking into each
atrocity and why and how it is happening. But, unless the Act is accompanied by necessary institutional
arrangements like the establishment
of special courts exclusively for the
purpose of trial of cases of atrocities
and special judges, carefully selected
or appointed to the special courts,
the benefit of the Act will not be
available in full or adequate measure.
Dr Ambedkar had once said that you
may have the best of constitutions
but it will fail to work if you have
wrong persons in charge. You may
have the best Acts but unless they are
also worked through the right institutions and right individuals, the
desired results cannot be achieved.
● It is the institutional mechanism
that you are talking about. Similarly
INTERVIEW
what are the other institutional
mechanisms that should accompany
this particular mechanism because,
we have the example of negligence by
police, with nearly 95 percent cases
resulting in acquittal. Then there is
the Khairlanji case where the SC/ST
Act was not slapped on the perpetrators.
There is no substitute for the top
political leadership taking it as one of
their major tasks. A socially conscious DGP is enough to galvanise
the entire police force of a state.
Similarly, a committed district collector is enough to galvanise the entire
district machinery. If the collector
and SP are carefully selected, and
they function in close cooperation in
the matter of atrocities, the situation
will significantly change. In the draft
of the proposed amendments in the
Act, we have said that the investigating officer, who belong to the police
department, prosecutor, who is a
lawyer, and the judge of the special
court should all be selected on the
basis of their past performance in the
matter of the legitimate rights of
Dalits, especially their right to security.
There are individuals in each of
these categories available in the
country and in each state, and what
is required is to identify them and
place them in charge of things. We do
not seek that they should be partial
to Dalits. Let them be only fair and
just, free from any prejudice or bias.
They should also understand the
social structure and the social processes which have been historically
inherited. This will require some
training and orientation. For example, usually in criminal cases,
whether under the IPC or under the
PoA Act, police investigation and the
prosecution presentation in the court
are episodic. That is not enough. It is
necessary to start with the history of
social relations, bring out the fact
that SCs are agricultural labour
castes and poor peasants who are
deprived through the centuries-old
practice of "untouchability", of their
elementary human rights, that they
have in recent times begun asserting
their rights guaranteed to them
under the Constitution, and that this
legitimate assertion of the rights is
considered as provocative by some
people of the dominant sections. The
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atrocity under trial should be placed
in that socio-historical context. Then,
the court can appreciate it in the full
and correct perspective. Training and
orientation in this regard needs to be
given to police personnel, lawyers, as
well as Dalit and human rights
activists.
● There is a Dalit chief minister in
Uttar Pradesh, but still a large number of atrocities are committed there.
The emergence and presence of a
Dalit chief minister by itself cannot
sweep away entrenched social processes including atrocities. Dalits
One of the main lacunae
in the Act is the absence
of a set up which will
ensure quick trials, viz.,
exclusive special courts
with exclusive sessions
judges, exclusive public
prosecutors, exclusive
investigating officers all selected on the basis
of their social sensitivity
and sincerity, free from
any caste bias
alone cannot bring about the change,
but what they can do is to exercise
their franchise more intelligently and
in an informed manner. They have to
be educated to make demands relevant to themselves from political parties and at the time of elections from
candidates of political parties in each
constituency. They should be educated not to seek or accept money or
liquor in exchange for their votes, but
demand and get commitments from
every candidate of political parties to
provide agricultural lands for every
rural family, and high quality residential schools for children of SCs,
STs and BCs. Such schools already
exist in states like Andhra Pradesh,
but they need to be much more
widespread throughout the country.
Navodaya Vidyalayas with 15 percent reservation for SCs and 7.5 percent for STs are not enough.
● What are the main amendments
you seek? What do you think has
gone wrong with the implementation
of Act?
One of the main lacunae in the Act is
the absence of a set up which will
ensure quick trials, viz., exclusive
special courts with exclusive sessions
judges, exclusive public prosecutors,
exclusive investigating officers - all
selected on the basis of their social
sensitivity and sincerity, free from
any caste bias. The lawyers selected
to prosecute these cases should be
paid realistic fees. The special prosecutors so selected also require some
training. To each public prosecutor, a
young SC or ST lawyer should be
attached. This will help to build up a
cadre of competent SC and ST
lawyers in every state.
● But these amendments are more
geared towards addressing the punitive part of it once an atrocity has
happened. Khairlanji incident is an
example where a family was not
ready to give up their land. There are
not many measures to prevent atrocities. Thus, court proceedings and
amendments are more tilting
towards punitive action and not
towards preventive. What is your
take on this?
Prompt and effective punitive action
in every case is itself a preventive
against future occurrence of atrocities. Strengthening the vulnerable
communities of SCs and STs through
various measures, which I have
explained earlier, are part of preventive action but not part of the punitive part of the Act. This is part of the
developmental
process,
which
requires a lot of inputs - the special
component plan for SCs, the tribal
sub-plan, earmarking of plan outlays
proportionate to the population of
SCs and STs, identification of
schemes required for meeting the
needs and aspirations of and
empowering SCs and STs. Schemes
should be identified on the basis of
their developmental and empowerment needs and priorities and built
into the central and state plans.
Defence need not be and should not
be violent. The very fact that they are
economically liberated and strengthened and educationally equipped
and equalised and that they do not
have to depend on others for liveli-
35
INTERVIEW
hood will itself constitute peaceful
and effective defence, and will act as
a preventive to atrocities as well as
"untouchability". The consciousness
and fear has to be instilled in political
parties that unless they attend to
these matters, they will be out of
favour with the SCs and STs.
You have already proposed a draft
that is underway. When do you see
this included in the PoA Act?
Our approach is that we should first
have a reservoir of all the amendments required to strengthen the Act
and its implementation. These
include, apart from amendments for
ensuring speedy trial, i.e., trial with
deterrent rapidity, amendments to
introduce in the list of atrocities, in
section 3, crimes like social and economic boycott and blackmail, which
SCs and STs face but are not at present listed among atrocities, and
amendments to make punishments
more stringent. We are also envisaging a new chapter on the rights of
victims, including survivors of victims, and the rights of witnesses.
The Act contains certain mandates on the State, but these mandates need to be made clearer, more
elaborate and more specific and
more enforceable like, for example,
the automatic commencement of
NREGA, Bharat Nirman and other
programmes. The next step is to prioritise the amendments because it
may not be possible to push through
all amendments at one stroke.
Depending on the capacity of our
system to digest, these amendments
have to be moved in manageable
installments. The fulfillment of the
first installment will generate the
momentum for the next one provided Dalit and human rights activism is
persistent. But, if we are able to create adequate political interest and
seriousness, and if we are able to get
the top leadership of the ruling political party and coalition, we might be
able to push through the amendments in their totality.
●
Between 1989 and now, that time
you had played a part in conceiving
that Act and getting it enacted and
now you are seeking amendments to
the Act. What have you seen in this
period of 20 years down the line?
Among the amendments now pro-
●
36
posed are those which I had originally pressed for in meetings as well as
in writing, but all of them did not
find acceptance at that time. There
are also some new ideas based on the
experience of activists in the field in
the last 20 years.
Among the educated sections of
SCs, there is a greater amount of
awareness now. They clearly perceive the inequity of their lot. This
process had its beginnings much earlier, even before Dr. Ambedkar
arrived. He gave it a national
momentum, a perspective and a
philosophical base. Thereafter, the
Our approach is that we
should first have a reservoir
of all the amendments
required to strengthen the
Act and its implementation.
These include, apart from
amendments for ensuring
speedy trial, i.e., trial with
deterrent rapidity,
amendments to introduce
in the list of atrocities, in
section 3, crimes like social
and economic boycott and
blackmail, which SCs and STs
face but are not at present
listed among atrocities
Constitution and the electoral process have also resulted in enhancing
the level of awareness. The small
middle-class of educated SCs has
been growing, thanks to some educational measures provided for them.
Apart from the growth of awareness,
there have been some quantitative
changes in objective conditions, but
not qualitative changes. SCs continue
to be agricultural labour castes of
India. STs continue to lose their
lands. BCs who are linked with certain traditional occupations like
crafts (weaving, blacksmithy, carpentry, pottery, fishing, stone-cutting
etc.) are losing their occupations
partly because of the advent of technology over time for which we did
not prepare them and more recently
the globalisation which has been
suddenly landed on them, without
making them capable of standing
their ground against unexpected and
sudden competition.
Awareness among the upper
castes that grave injustice has been
committed on Dalits is yet to make its
appearance. Mahatama Gandhi
made efforts to sensitise the upper
castes, but after him there has been
very little effort at that end. The
state-run educational system has not
given serious attention to counteract
the negative attitudes engendered
from childhood in the family and
subsequently in the peer groups on
account of the caste system.
Enhancing the morale of the downtrodden and improving the morals,
that is the social morals of others,
especially of those who are on top,
have to be promoted actively hand in
hand. Human rights education, particularly Dalit human rights education, has to be introduced in a graduated and systematic manner in
schools and continued in colleges
and universities. There is a non-governmental national institute of
human rights which is trying to do
this. This should be supported but
this is not enough. It is necessary also
to create consciousness in political
parties and their top leaders that we
have to help the SCs, STs and BCs to
survive in order that India survives.
Are you contemplating the amendments to introduce various protection protocols in this particular Act
and what kind of witness protection
protocols you are proposing?
This part of the draft is evolving. The
idea of the importance of victims and
witness protection and support has
been generated and is being given
concrete shape. We had a consultation on August 11, 2009 which was
followed by a national consultation
with the participation of a large number of Dalit and human rights
activists on September 11, 2009 and
which will culminate on January 20,
2010. During this period we hope to
have the widest consultation regarding the measures required to give
effective and practical protection to
victims and witnesses.
Fortunately the issue of witness
protection has become an issue even
outside the Dalit atrocities framework and it is perceived that even in
●
INTERVIEW
the general IPC cases, not connected
with Dalits, fear is turning many witnesses "hostile". This helps us. If others require witness protection, Dalit
victims, survivors and witnesses
require much more protection. In the
case of Dalits, coercion takes the very
effective form of social boycott and
economic boycott and threat of such
boycotts. In their case, protection is
required not only for victims, survivors and witnesses, but for the
whole community. I am envisaging a
specific mandate on the central as
well as state governments in this
regard as part of the amendments.
● The implementation of the Act
rests heavily on the shoulders of
police. Do you think that could have
been the reason behind the adequacies of non-implementation of
the Act?
If the SP of the district and the DGP
of the state 'will' that this Act shall be
fully, correctly and promptly implemented at all places with the help of
the police stations, it will be so implemented. It has happened in some
places in certain periods, depending
on the active interest taken by the
DM and/or the SP.
In criminal offences you cannot
get away from the police because
investigation is done by the police
and can be done only by the police. A
voluntary organisation can, no
doubt, make its local enquiries, but it
cannot substitute for investigation by
the police who alone can file the
charge sheet before the court. The
national commissions for SCs and
STs and their regional officers also
make enquiries and reports. Even
this cannot be a substitute for police
investigation. I, as special commissioner for SCs, and later as member,
national commission for SCs and STs,
have personally conducted enquiries
in a number of cases like NonhiNagwa and Damuha-Khagri Tola in
Bihar and Tsunduru in Andhra
Pradesh. The reports of voluntary
organisations and regional officers of
the national commissions will no
doubt be of help in watching and
ensuring that police investigation
does not go awry, but cannot substitute police investigation as part of
the judicial process. Similarly, trials
can be conducted only by the court
and nobody else can do it. These can
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go to special courts but they have to
be part of the judiciary. Our disappointment with the lackadaisical
manner in which investigations have
generally been conducted (with
exceptions which show the potential)
cannot be a ground for dispensing
with the police, but we have to work
out legislative measures in the shape
of amendments and other measures
which are matters of governance and
administration, to make investigations and the rest of the process, ending with the completion of the trial,
efficient in all cases. It should not
In criminal
offences
you cannot
get away
from the
police
because
investigation is done by the
police and can be done only
by the police. A voluntary
organisation can, no doubt,
make its local enquiries, but
it cannot substitute for
investigation by the police
who alone can file the
chargesheet before the court
have to depend on accidental circumstances like positive social outlook of
an individual district collector or an
individual SP. This is what we are
attempting now.
In a large number of atrocity-related cases the place of atrocities is not
declared as an "atrocity-prone area"
so as to reinforce or build up security
for the advantage of the community.
So what kind of amendments you are
contemplating to make for the areas
which are prone to the atrocities?
This particular measure is no doubt
useful, but it has got limitations. In
fact, I do not know whether any area
is free from atrocity- proneness as
atrocities can happen anywhere
when one community is a landless
labour community and the major
●
landholders belong to one or two
other communities. The juxtaposition of these two exists in almost all
villages. It is like gunpowder, a spark
is enough to light it. It can happen in
many places. I have brought this out
in my report on the Tsunduru case.
Therefore, merely declaring a place
as "atrocity-prone" is not adequate.
What is more important is to see how
to avoid such a situation of juxtaposition of a caste of agricultural labourers and one or two major landowning
castes. That is why it is crucial to see
that all SCs in rural areas are converted into self-sufficient land-owning
farmers by undertaking a rapid programme of distributing distributable
lands among them and developing all
their lands by constructing community irrigation sources as committed by
the CMP/NCMP of 2004 of the UPA
government. Wherever you have got
landless SC tillers and non-SC landholders, which is virtually everywhere in non-tribal-area India,
you have a potential atrocity-prone
situation.
● After this ongoing campaign for
amendments under the PoA Act,
what other initiatives do you plan to
undertake?
Not after this, but simultaneous and
along with this. Our agenda does not
consist only of prevention and penalisation of atrocities. The process of
development and empowerment of
SCs and STs has many aspects. One
pertains to land distribution and
land development another pertains
to developmental planning, the budget, the SCP for SCs and the tribal
sub-plan. I have placed ideas and
action points in respect of this aspect
before successive governments.
These find place in various documents which I have prepared on
behalf of /under the auspices of Dalit
organisations. I have also included
many of these in my recent book
"Empowering Dalits for Empowering
India - A Road Map", so that they can
be available for the information and
guidance of activists, but to get the
government to act in accordance
with them, in accordance with
commitments made in the past and
in accordance with the constitutional
mandate on the State requires
positive pressure which has to be
built up. ■
37
DALIT RIGHTS
Khairlanji verdict
Whither the Atrocity Act?
While major crimes deserve much severer sentence under the IPC than the maximum
sentence of five years provided in the SC/ST Prevention of Atrocities Act, its
systematic neutralisation in the justice delivery system smacks of a deep rooted
prejudice, as is clearly reflected in much debated Khairlanji verdict. If the justice
delivery system itself is blind to the social reality of caste, the entire exercise of
creating the constitutional structure and cobweb of laws for protecting Dalits becomes
self-defeating, writes Dr Anand Teltumbde
38
DALIT RIGHTS
Entire world knew about Khairlanji. It's
Bhaiyalal Bhotmange. That his wife Surekha,
daughter Priyanka and two sons -- Sudhir and
Roshan were lynched to death by the caste
Hindu mob of the village and their bodies
thrown away into a nearby canal
hairlanji -- undoubtedly is one
of the worst cases of caste
atrocity in the history of postindependent India. It provoked the
most widespread and the longest
agitation of Dalits in protest of a
caste crime and also the worst kind
of state repression.
Entire world knew about
Khairlanji. It's Bhaiyalal Bhotmange.
That his wife Surekha, daughter
Priyanka and two sons -- Sudhir and
Roshan were lynched to death by the
caste Hindu mob of the village and
their bodies thrown away into a
nearby canal. That the body of 17
year-old Priyanka was found without
any cloth on and with bruises all over
and also her mother's in just a petticoat and a blouse. Everyone knew
K
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that although the immediate cause
for the incident was Surekha and
Priyanka standing as witness against
the villagers in the case of assault on
one Siddharth Gajbhiye – victims'
relation and a police patil of nearby
village, it was a culmination of a long
standing grudge of the villagers
against Bhotmanges' defiant resistance to their unjust overtures. Right
since Bhotmanges came to Khairlanji
to till their fertile land near an irrigation canal, some villagers had begun
to harass them with an alibi of having a passage through their land.
Even after giving the passage, they
persisted with the harassment, which
clearly showed that they wanted to
drive them out and grab their land.
There has been a history of caste
abuses and threats of killing them,
which the entire world has known
through several fact-finding reports
and hundreds of other reportage in
public domain.
None of this, however, could be
known to the ad hoc sessions court in
Bhandara, which pronounced that
there was no caste dimension to the
incident, nor was there any conspiracy or molestation of Bhotmange
women. Whether it is a fault of the
investigating agency to collect evidence or the public prosecutor to
present it before the court or the
judge to comprehend it is a mute
question. The fact remains that the
verdict of Khairlanji, the world
famous caste atrocity, did not qualify
to be a 'caste atrocity' to deserve
application of the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, or the Atrocity
Act as it is commonly known. It only
reconfirmed to the pattern of judgements that have effectively neutralised this only law on crimes
against Dalits with some teeth.
While there may not be much
consequence of the Atrocity Act in
cases of major crime that get much
severer sentence as per the IPC than
the maximum sentence of five years
provided in it, its systematic neutralisation in the justice delivery system
smacks of the prejudice of the latter
which is the worrisome matter. If the
justice delivery system itself is blind
to the social reality of caste, the entire
exercise of creating the constitutional
structure and cobweb of laws for
protecting Dalits becomes self
defeating.
No caste in Khairlanji?
The FIR no: 56/2006, September 30,
2006 registered with the police does
mention that "because the complainant belonged to the Mahar
caste, the accused with the intention
of driving them out of the village,
brutally beat the complainant's
daughter Priyanka, killed her and in
order to destroy the evidence threw
her dead body into the canal." The
FIR also mentions that the accused
belonged to Kunabi and Kalar
castes, i.e., non-scheduled castes and
the complainant belonged to the
scheduled caste. Thus, the crime
prima facie qualified to be an atrocity under the Atrocity Act. The usual
excuse that the FIR did not have
indication of caste conflict being
behind the crime (which is rightly
done away with by the Supreme
Court recently) certainly did not
apply to Khairlanji. Indeed, the
judgement did not indicate any such
technical lacunae in the case for not
applying the Atrocity Act. It did not
see any ground for invoking its provisions and summarily concluded,
"Khairlanji was a case of murder
spurred by revenge for an earlier
case of assault involving the police
patil of a nearby village."
It means that the public prosecutor did not establish the caste angle
in the case. There was ample information even in public domain for the
public prosecutor to strategise his
39
DALIT RIGHTS
interrogation in the court to bring
forth the caste dimension underneath the crime. Obviously, he has
not done it to the satisfaction of the
judge. On perusing the record of testimonies of the witnesses , however,
one finds a good amount of material
to establish the caste dimension
underneath.
A witness Suresh Khandate had
stated in his statement on June 30,
2007, "I then saw Jagdish Mandlekar,
Vishwanath Dhande, Shishupal
Dhande, Shatrughna Dhande, Ramu
Dhande, Sakru Binjewar, Gopal
Bijewar and Prabhakar Mandlekar
were standing in front of the house of
Bhaiyalal Bhotmange. Shatrughan
Dhande and Shishupoal Dhande
were holding bicycle chains in their
hands.
Jagdish
Mandlekar,
Vishvanath Dhande, Ramu Dhande
and Sakru Bijewar were holding
sticks in their hands. They were giving abuses to Surekha Bhotmange
and asking her to come outside her
house. Jagdish Mandlekar and
Vishvanath Dhande were telling
Surekha Bhotmange that she made to
complaint against them and told
their names to police station and that
these Mahar caste people should be
ousted from the village."
40
Another witness in the case,
Mukesh Asaram Pusam, in his statement on May 4, 2007, had stated that
one Jagdish Mandlekar was hurling
abuses on Surekha Bhotmange asking her to come out of the house. (At
this stage request was made by the
special public prosecutor Mr Nikam
to record evidence of this witness in
question answer forms for some
time). …
Question: What abuses they were giving?
Answer: They were telling, "Mahar
Lok Majlele Aahet Tyana Gharabaher
Kadha Aani Marun Taka." [Mahar
community people have become
arrogant and they be pulled out and
be killed].
Another witness, Dinesh Dhande
in his statement on 16/11/06, in his
examination by Adv. Ezaz Khan said,
"While the incident was going on, 30
to 40 persons surrounded the house
of Bhaiyalal Bhotmange. Then some
persons out of them, who were beating the Bhotmanges intermittently
were shouting that if some one tells
their names then he will also be beaten like them. Thereafter, I went away
from there to my house as I was
frightened. Bhaiyalal belongs to
Mahar caste. At the time of incident
those persons who were beating also
shouting that 'Maharana Mara' (beat
the Mahars). Those who were beating are now present in the Court. I
know them as they are my co-villagers."
In Exhibit no. 132, Bhaiyyalal
Sudam Bhotmange said, "On that
day at about 6–6:30 pm villagers
attacked our house. They were
shouting that, "Mahar Dhed [derogatory name for Mahars] people falsely
implicated us in police case."
All these testimonies are sufficient to attract the sections of the
Atrocity Act. But the court completely disregarded them and freed all the
accused from the charges of its sections 3(1) (x), 3(1) (xi) and 3(2) (v).
Apart from what has come on
record, there was much that could be
elicited in order to build the context
for the case. Without setting the context for the crime how could possibly
the real motive for it be discerned?
The caste Hindus had begun harassing newly migrant family of
Bhotmanges raising a pseudo dispute over the passage through their
farmland. It turned out to be illfounded through revenue records
but still Bhotmanges voluntarily
offered them the passage in a bid to
buy peace in village. However, not
only did their harassment continue
unabated but also increased with the
entire gram panchayat colluding in
it. The panchayat did not approve of
their hutment being turned into a
concrete structure and thereby
deprived it of basic convenience like
electricity connection. When they
continued in village despite this all, it
was construed as defiance. Much of it
was attributed to the support they
received from Siddharth Gajbhiye, a
relative and a well to do Dalit from a
nearby village. He was therefore
attacked under the alibi of dispute
over wages. And as a sequel to his
case, the caste Hindus lynched the
Bhotmange family to death. This intimate context of the case clearly
brings out the underlying caste
dimension to the entire saga of sufferings of the Bhotmanges. The
Atrocity Act would demand of courts
to examine the context of the case to
discern the salience of caste dimension. Obviously, the Bhandara court
did not do it disregarding many
pointers and instead reached the
DALIT RIGHTS
easy inference that there was no caste
angle to the case.
It is not very difficult to disprove
caste angle in any crime. It is quite
commonplace to see the people
belonging to the upper castes vehemently dismissing the existence of
caste any and everywhere. Indeed, in
the Khairlanji's case itself there were
articles published in the national
newspapers in the heat of dalit
protests arguing that the incident
was unduly given a caste angle. To
prove their point, they could even
uphold the abominable theory of
illicit relationship, invented and
propagated by the police to suppress
the incident. It is not realised that
these arguments are vacuous. Caste
is not a material substance that its
existence could be established objectively. It necessitates sensitivity to see
that caste is an essential constituent
of the Indian social ecology, a pervasive virus that cannot be isolated
from practically anything. It exists
everywhere; only its salience could
differ. Even the hallowed judiciary is
not expected to be exception to it. It is
therefore that the Atrocity Act had a
simple definition of atrocity for its
prima facie application. For determining the salience of caste in process of delivering justice, it may
expect the judges to possess due sensitivity. Unfortunately, it is still
scarce. The justice delivery system
also reflects the same prejudice
against Dalits which is encountered
in the civil society.
How could it then be left to
judges to determine whether a crime
against Dalits has a caste motive or
not for the prima facie application of
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It is not very
difficult to disprove
caste angle in any
crime. It is quite
commonplace to
see the people
belonging to the
upper castes
vehemently
dismissing the
existence of
caste any and
everywhere
the PoA Act? How can one prove that
a crime is caused because of the caste
of the victim? In ordinary circumstances, the ostensible cause of crime
would always be found in some dispute over property (land) or some
immediate provocation, as per victim
precipitation theory. Even behind an
obvious case of caste crime such as
killing a Dalit for entering temple
one may see any other momentary
cause other than caste, if one wants
to. The crimes against Dalits are
catalysed by social prejudice and
their vulnerability. While social prejudice could be dismissed as nonmaterial or ideological, vulnerability
can be argued to be a non-caste factor, if one is determined to discount
caste. It need not be appreciated that
social prejudice to a large measure
begets vulnerability and the two cannot be separated. To search for an
evidence of caste motive behind the
crime against Dalits is therefore
objectively impossible. It is either relegated to a judge who is not supposed to be immune from social prejudice or to the perpetrator of crime
himself to admit it. Both conditions
are fallacious.
Total lack of political will
Ever since the SC/ST Act has been
enforced, a section of the political
leadership has launched an open vilification campaign against its use,
reinforcing the general prejudice
against Dalits in justice delivery system. As a result, nowhere in the
country the Act has been vigorously
implemented. It has, if at all, little
impact on the level of atrocities
against Dalits. In Maharashtra, the
Shiv Sena, which represents the
Brahminical ethos par excellence,
had made repealing the Act as its
election issue in 1995. True to its
promise, after coming to power, it
withdrew over 1,100 cases registered
under the Act alleging that the cases
were false and were registered out of
personal bias. The state government
also declared that it would ask the
central government to amend the Act
to limit its "abuse". The withdrawal
of cases effectively sent the message
to the police not to register the cases
and ensured that it would not be
taken seriously. When a government
in power takes such a position, its
constitutional
responsibility
is
severely compromised. This also
ensured that no one would take the
law seriously.
41
DALIT RIGHTS
The chief of Samajwadi Party,
Mulayam Singh Yadav, openly and
unabashedly spoke against the use of
the SC/ST Act and accused the then
Dalit chief minister of Uttar Pradesh
(Mayawati) of casteism in enforcing
the Act. He has been consistently
arguing against its use by the police
machinery. In 1997, the BJP also
called for its repeal on the ground
that the ruling party (BSP) has been
instigating SCs to file cases against
political opponents in the state.
Later, with changed political equations, Mayawati herself had issued
instructions not to register cases
under the atrocity Act unless
approved by the district magistrates.
The CPM-led government in West
Bengal was not registering cases
under the Act because of their conviction that violence against SCs is
not guided by caste consideration.
Very recently, one Rajasthan cabinet
minister termed the registration of
cases under the Act as a 'headache'
for the police and sought to remedify
the problem. These are only few
instances where the expression of
hostility has come out in the open.
Many more political leaders may be
covertly frustrating the use of its provisions in controlling the incidence of
atrocities. This provides evidence, if
required, that the political will to
enforce the Act has been lacking. If
the Act really gets implemented
effectively, it would not be surprising
to see more hostile statements coming out against the use of the Act
from the political class.
The lack of political will is not
42
confined to some utterances of certain politicians; it is evident in the
gross laxity in compliance with the
Rules framed for implementation of
the atrocity Act across the states. As
Khairlanji revealed, Maharashtra did
not have much to claim. Bhandara, as
the atrocity prone district should
have had a special court, a panel of
senior advocates to draw a special
public prosecutor from, district committee, and a system to review performance of special public prosecutors. Even after the unprecedented
public uproar, the government made
do with an ad hoc session court and
imported a 'celebrity' public prosecutor from Mumbai ignoring the nominee of Khairlanji action committee.
The lack of political
will is not confined
to some utterances
of certain
politicians; it is
evident in the gross
laxity in compliance
with the rules
framed for
implementation of
the Atrocity Act
across the states
A tamed toothless tiger
This being the state of political will
behind the Atrocity Act, the state
administration would naturally be
lax in dealing with atrocity cases. The
Ahmedabad-based Council for Social
Justice
(CSJ) had conducted a
detailed study of 400 judgements
delivered by the special courts set up
in Gujarat in 16 districts since April 1,
1995. It revealed a shocking pattern
of reasons for the collapse of cases
filed under the PoA Act within
Gujarat -- utterly negligent police
investigation at both the higher and
lower levels, coupled with a distinctly hostile role played by the public
prosecutors. In over 95 percent of the
cases, acquittals had resulted due to
technical lapses by the investigation
and prosecution, and in the remaining five percent, court directives
were flouted by the government.
The study also refutes the perception
that the inefficacy of this Act is due to
false complaints being lodged or
compromises between the parties. It
says it is the complicit state that has
rendered the Act toothless.
All these lapses of the state functionaries are as a matter of fact punishable under the 1989 Act but no
action is ever taken. Section 4 of the
Act clearly says, "Whoever, being a
public servant but not being a member of a scheduled caste or a scheduled tribe willfully neglects duties
required to be performed by him
under this Act, shall be punished
with imprisonment for a term which
shall not be less than six months but
which may extend to one year." In 95
percent of the judgements studied by
the CSJ, courts have passed strictures
against errant police officials invoking provisions of section 4 of the
Atrocities Act, but the government of
Gujarat, instead of taking action
against the officers, has honoured
them with promotions.
No wonder the conviction rate for
the cases under the Atrocity Act is
alarmingly low. According to an official report -- crime in Maharashtra,
2007 -- by the state criminal investigation department (CID) this year,
the conviction rate under the
Atrocities Act for 2007 was a minuscule 1.9 and for offences against
scheduled castes it was 2.2 percent.
In 2007, the CID report said the rate
of crime against scheduled castes
DALIT RIGHTS
was the highest in Bhandara district.
The Atrocity Act, appearing as a
roaring tiger on paper is reduced in
practice to be a toothless tiger.
Conclusion
The Khairlanji verdict was hailed as
'historical' by newspapers and certain Dalit politicians because it was
delivered within two years from the
occurrence of the incident, relatively
a short period in the Indian judicial
history, and awarding severe sentences (death to six and life imprisonment to two) as the ghastly crime
deserved. While many Dalits were
awarded capital punishment before
but it was for the first time that it was
given to their killers. In the jubilation, it was forgotten that for this
worst orgy of violence by the entire
caste Hindu village, only 11 out of 47
original accused were tried and only
eight out of them finally convicted.
More importantly, they were discharged from the provisions of the
Atrocity Act as well as section 354
(assault or criminal force with intent
to outrage the modesty of a woman)
or section 375 (that deals with rape)
of the Indian Penal Code. While in
the heat of public uproar, the ad hoc
sessions court awarded severe punishments, as the case goes through
appeals in higher courts; it is anybody's guess whether the convicts
would be eventually punished for
their crime.
The bigger problem is that the
Khairlanji verdict calls into question
the enforceability of the Atrocity Act.
The sessions court has rejected its
application to the Khairlanji case as it
did not find any caste motive in the
www.combatlaw.org
The Khairlanji verdict
was hailed as 'historical'
by newspapers and
certain Dalit politicians
because it was delivered
within two years from
the occurrence of the
incident, relatively a
short period in the Indian
judicial history, and
awarding severe
sentences (death to six
and life imprisonment to
two) as the ghastly crime
deserved
crime. There have been similar cases
in the past but they went unnoticed.
While the judges award the sentence
under IPC, they refuse to see the
caste motive in the crime so as to
attract the Atrocity Act. For instance,
in a recent judgement on the infamous case of a gang rape of a Dalit
student by her teachers in a primary
teacher training college in Patan,
Gujarat, the fast track court awarded
life imprisonment to all the six
accused but rejected the application
of the Atrocity Act as he did not see
caste motive behind the crime. While
in major crimes, such as rapes and
murders, by virtue of sentences
awarded under the IPC exceeding
the maximum sentence provided
under the Atrocity Act, it may appear
inconsequential, but truly speaking it
leaves out many of its other provisions which are not available under
the IPC. For instance, the Act provides for punishment to policemen
and enforcement authorities who fail
to protect Dalits from atrocities. It
empowers special courts to expel
'potential offenders' from scheduled
areas and tribal areas, attach the
property of an offender, and prohibits the grant of anticipatory bail to
the potential accused. It also provides for the payment of compensation to victims or their legal heirs as
well as imposition of collective fine.
These unique provisions are not
included in any other Acts. The
Atrocity Act has simple definition of
atrocity, being a crime committed by
a non-SC/ST person on a SC/ST person. If this definition is overlain with
the criterion of caste motive, as being
practiced by the judges, the Act
becomes unenforceable and hence as
good as dead.
The Atrocity Act is premised on
the fact that the crimes against Dalits
by non-Dalit have special socio-cultural context which is absent in other
crimes. Caste being a pervasive feature of the Indian society, the judges
cannot be assumed to be islands
devoid of its influence. They are only
expected to professionally deal with
the mechanics of laid down law and
not to possess extraordinary sensitivity to pronounce verdict on the basic
social character of which they themselves are a part. When they pronounce judgement about the existence or otherwise of a caste motive
in a crime, they essentially assume
themselves to be sans societal influence. In doing so, they not only contradict the basic premise of the Act
but by bringing their own prejudices
into play incapacitate its prowess of
doing justice to Dalits. There is an
urgent need to remove this anomalous content of the Act to restore its
enforceability. The government
should realise that it has grossly
failed to enforce the Act because it
has shied away from punishing the
people responsible for creating the
structure for its implementation as
envisaged by the Act.
–The writer is a human rights
activist and author of
'Ambedkar on Muslims'
43
DALIT RIGHTS
Right not to be treated as
UNTOUCHABLE
More than sixty years
after Independence,
untouchability is alive
and thriving in India's
hinterlands. Pockets
of social change are
mere drops in an
ocean of casteism and
prejudice. Justice
(Retd) Hosbet Suresh
analyses the SC/ST
Atrocities Act in
comparision with
other international
laws, only to find out
that untouchability is
equal to apartheid and
there is an urgent
need to redraft Article
17 in the form of a
right - 'right not to be
treated as an
untouchable'
hile the Indian Constitution
guarantees certain fundamental freedoms, under
Articles 19(1), 14, 21 with constitutional remedies under Articles 32
and 226, can it be deduced that there
is a similar guarantee when it comes
to Article 17 relating to untouchability? The Article only says, "untouchability is abolished and its practice in
any form is forbidden. The enforcement of any disability arising out of
'untouchability' shall be an offence
punishable in accordance with law."
W
44
While the Constitution states that
it is "abolished", the reality and factual situation is that untouchability is
prevalent all over the country even
after nearly six decades of the
Constitution. While it is not necessary
to enumerate those practices of
untouchability, it must essentially be
considered as a caste-biased discrimination. As such it should fall within
the ambit of Article 14. However,
under Article 14 there is no positive
programme to initiate democratic
change under rule of law to eliminate
DALIT RIGHTS
the inhuman practices of untouchability. Articles 15 and 16 operate in certain areas, as mentioned therein, prohibiting discrimination on grounds of
religion, race, caste, sex or place of
birth and providing equality of opportunities in certain areas of public
employment and education. These
provisions by themselves are not sufficient enough to bring about equality
of status in every walk of social life.
Justice K Ramaswamy observes:
"There can be no dignity of person
without equality of status and opportunity. Denial of equal opportunities
in any walk of social life is denial of
equal status and amounts to prevent
equal participation in social intercourse and deprivation of equal access
to social means…" (State of Karnataka
vs Appa Balu Ingle. AIR 1993 SC 1126)
Untouchability is nothing but
severe social discrimination, and has
resulted in deprivation of all economic, social and cultural rights of
all the victims of untouchability
namely the Dalits. Therefore, the
objective of Article 17 being to guarantee non-discrimination by eliminating untouchability ought to have
provided for measures in relation to
economic, social and cultural rights,
with a view to attain equality of status and dignity for every Dalit at par
with
every
other
citizen.
Unfortunately, Article 17 only provides for treating untouchability as
an offence, and leaves the rest with
the police. Perhaps the Constitution
makers might have felt that treating
untouchability as a crime would be a
sufficient deterrent to put an end to
this social evil.
The government initially enacted
the Untouchability (offences) Act,
1955, later amended and renamed in
1976 as the Protection of Civil Rights
Act. It provided for punishment to
persons enforcing religious disabilities (prevention of entry into temples, sacred rivers and water bodies,
etc.) and enforcing social disabilities
(denying access to any shop, hotel,
public hospital, etc.). The Act authorises the government to impose collective fine on all inhabitants of an
area where the offence is committed.
Similarly in the case of commercial
establishments, every person incharge of its affairs could be prosecuted even if they have not personally committed the offence.
www.combatlaw.org
However, PCRA was found to be
not sufficiently effective. Hence, the
government enacted the scheduled
caste and scheduled tribes (prevention of atrocities) Act, 1989. It enumerated about 15 offences of atrocities and provided for punishment of
those offences. Further it provided
for punishment for abetment, fabrication of false evidence, etc. It also
provided for punishment for neglect
of duties and even the police could
be prosecuted for not registering a
complaint and for not carrying out
proper investigation. Under the
Rules, the victims are entitled to get
compensation for different stages as
the case proceeds.
Another piece of legislation is the
Employment of Manual Scavengers
and Constructions of Dry Latrines
(Prohibition) Act, 1993, which provides for the prohibition of employment of manual scavengers as well
as construction or continuance of dry
latrines and for the regulation of construction and maintenance of water
seal latrines and matters connected
therewith.
However, with all these laws in
place for decades what have we
achieved so far? The practice of
untouchability continues. We still
have manual scavengers and workers being required to enter the manholes and sewers to clean them manually without the safety equipment.
These persons are engaged by the
State -- the local authorities -- without realising that such acts are violative of the Constitution itself.
One of the main reasons for the
ineffective implementation of the
SC/ST Act is that there is an inordinate delay in the trial of criminal
cases in this country. Moreover, the
investigations are generally in the
hands of the police, majority of them
being from the upper caste. The
delay ultimately defeats justice and
the evil persists. This is exactly what
has happened with regard to the
offences under the Atrocities Act.
Untouchability cannot be eliminated by the police alone. It cannot
be removed by just making it an
offence without taking positive steps
to end all social discrimination and
promote equality. It is time to redraft
Article 17 in the form of a right -Right not to be treated as an
"Untouchable". The State will then
Untouchability is
nothing but severe
social discrimination,
and has resulted in
deprivation of all
economic, social and
cultural rights of
all the victims of
untouchability, namely
Dalits. Therefore, the
objective of Article 17
being to guarantee
non-discrimination
by eliminating
untouchability ought
to have provided for
measures in relation to
economic, social and
cultural rights, with a
view to attain equality
of status and dignity for
every Dalit at par with
every other citizen.
Unfortunately, Article
17 only provides for
treating untouchability
as an offence, and
leaves the rest with the
police. Perhaps the
Constitution makers
might have felt that
treating untouchability
as a crime would be a
sufficient deterrent to
put an end to this
social evil
45
DALIT RIGHTS
have the obligation to prevent
violation of this right, and also to fulfil its duty.
In this connection we may refer to
the South African constitution. They
had the worst form of apartheid and
faced all kinds of discriminatory
practices that white minority heaped
upon the blacks, Asians and other
"coloured" people. However, South
Africa, after its reconstitution into a
republic in 1996, enacted two great
pieces of legislation that any country
could. The first one is the Promotion
of Equality and Prevention of Unfair
Discrimination Act, 2000. This was
enacted to give effect to section 9 of
the constitution of the South African
Republic. It provides "for the enactment of national legislation to prevent or prohibit unfair discrimination and to promote the achievement
of equality". The Act is said to be
advancement over the Civil Rights
Act, 1964, of the USA and the SC/ST
Prevention of Atrocities Act, 1989, of
India. The South African Act is significant since it selects three very crucial and socially burning issues
namely, discrimination, harassment
and hate speech.
The objective of this law states:
"The consolidation of democracy in
our country requires the eradication
of social and economic inequalities,
especially those that are systemic in
nature, which were generated in our
history by colonialism, apartheid and
patriarchy, and which brought pain
and suffering to the great majority of
our people.
Although significant progress has
been made in restructuring and
transforming our society and its
institutions, systemic inequalities
and unfair discrimination remain
deeply embedded in social structures, practices and attitudes, undermining the aspirations of our constitutional democracy."
It takes into account international
conventions, particularly Convention
on the Elimination of All Forms of
Discrimination Against Women, and
the Convention on the Elimination of
All Forms of Racial Discrimination. It
emphasises the need for the advancement by special legal and other measures of historically disadvantaged
individuals, communities and social
groups who were dispossessed of
their land and resources, deprived of
46
USA and South Africa
had passed through
histories of inequality,
discrimination, racism,
apartheid and many violent
and peaceful protests.
In the US, the AfricanAmericans who were taken
as slaves in the 16th and
17th centuries, and the
Hispanics -- people from
Latin American countries -also taken as slaves, have
been able to overcome
discrimination and
inequality to a great extent.
Today these discriminated
people are on an
equal footing
their human dignity and who continued to endure the consequences.
The Act provides for prevention
and general prohibition of unfair discrimination, prohibition of unfair
discrimination on grounds of race
and gender, prohibition of hate
speech and harassment and of dissemination and publication of unfair
discriminatory information. The Act
provides for equality courts and for
promotion of equality it ordered general responsibility to promote equality as a duty of the State.
The second Act in the South
African
constitution
is
the
Employment Equity Act, 1998. This
was enacted to mainly eliminate disparities in employment, occupation
and income. The Act was brought in
order to promote the constitutional
right of equality and the exercise of
true democracy and to give effect to
the obligations of the republic as a
member of the International Labour
Organisation (ILO). The Act, apart
from prohibiting unfair discrimination, has an affirmative action programme. One of the important provisions is that anybody who employs
50 or more employees, whether in
government, public or private sector,
or anyone who under a contract with
the State employs 50 or more per-
sons, will have to employ certain
number of black people (all coloured
people), women and persons with
disabilities. Like in the US, the
Act provides for a committee for
employment equity, similar to
Equal Employment Opportunity
Commission.
Both, USA and South Africa had
passed through histories of inequality, discrimination, racism, apartheid
and many violent and peaceful
protests. In the US, the AfricanAmericans who were taken as slaves
in the 16th and 17th centuries, and
the Hispanics -- people from Latin
American countries -- also taken as
slaves, have been able to overcome
discrimination and inequality to a
great extent. Today these discriminated people are on an equal footing,
both, in the private sector and in
every sphere of public life. Hence,
South Africa is very much on the way
to evolve into a vibrant democracy.
The Human Rights Committee
(under Article 40 of International
Covenant on Civil and Political
Rights) in its report on India (August
4, 1997) had, inter-alia, observed:
"The Committee notes with concern
that, despite measures taken by the
government, members of scheduled
castes and scheduled tribes … continue to endure severe social discrimination and to suffer disproportionately from many violations of their
rights under the covenant, inter-alia,
inter-caste violence, bonded labour
and discrimination of all kinds. It
regrets that the de facto perpetuation
of the caste system entrenches social
differences and contributes to these
violations. While the committee
notes the efforts made by the State to
eradicate discrimination, it recommends that further measures be
adopted, including education programmes…"
It is now two decades since the
report surfaced. The crux of the problem is that while we abolished
untouchability we have still retained
the caste system. As long as the caste
system continues to dominate our
social and cultural life, untouchability will not disappear. It is time we
say the caste system is abolished.
–Justice Hosbet Suresh
is a retired judge of the
Bombay High Court
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47
DALIT RIGHTS
A neglected
component
The special component
plan (SCP) was designed to
economically liberate,
educationally equalise and
give social dignity to
Scheduled Castes and their
inclusion into the
mainstream society.
However, fiddling with the
funds meant for the
economic empowerment of
the Dalits in the
bureaucratic corridors and
weak implementation of
the SC/ST (PoA) Act has
completely defeated the
purpose of the SCP. In the
last five years, the system
has denied SCs a whopping
sum of Rs 76,690 crore that
should have been
earmarked for them under
a special scheme.
Advocating qualitative
diversion of funds,
N Paul Divakar and
Abhay Kumar opine that
unless we create an
environment where the
downtrodden advance from
their traditional jobs, the
motto will remain
unfulfilled
48
“It is shocking that the conviction
rate for cases of atrocities against
SC/STs is less than 30 percent,
against the average of 42 percent for
all cognisable offences under the
IPC. The state governments, therefore, need to give more attention to
this important issue. Meetings of
state and district vigilance and
monitoring committees should be
held more regularly. Court cases
should be pursued diligently and on
priority basis. I have written to the
chief ministers of all the states to
enforce vigorously the provisions of
the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities)
Act.”
–Prime Minister Manmohan
Singh addressing a conference of
state ministers of welfare and
social justice (September 7, 2009)1
he SC/ST Prevention of
Atrocities (PoA) Act has been
promulgated in 1989 and the
rules in 1995 with the objective of
preventing the atrocities against
scheduled castes, for speedy and
effective trial, and relief and rehabilitation. The special component plan
(SCP) was designed to ensure the
economic development and inclusion of the SC communities into the
mainstream society on all fronts. The
performance of the UPA government, which is now in its second successive term, in the implementation
of these two provisions is indeed disappointing.
T
Special provisions for SCs
Scheduled castes have been among
the most neglected, marginalised and
exploited lot. The scourge of
untouchability is a blot on the Indian
DALIT RIGHTS
civilisation. Despite the constitutional declaration of its abolition,
untouchability persists in many subtle and not so subtle forms. The deep
concern of the makers of the
Constitution for the uplift of the
scheduled
castes
and
other
marginalised communities of the
country is reflected in the elaborate
constitutional mechanism set-up for
their welfare. Article 17 abolishes
untouchability whereas Article 46
requires the State “to promote with
special care the educational and economic interests of the weaker sections of the people, and, in particular,
of the scheduled castes and the
scheduled tribes, and to protect them
from social injustice and all forms of
exploitation”. Article 335 says that
the claims of the members of the
scheduled castes and the scheduled
tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration,
in the making of appointments to
services and posts in connection with
the affairs of the union or of a state
meanwhile, Article 15(4) refers to the
special provisions for their advancement. Article 16 (4A) speaks of
“reservation in matters of promotion
to any class or classes of posts in the
services under the State in favour of
SCs/STs, which are not adequately
represented in the services under the
State”. Article 338 provides for a
national commission for the sched-
www.combatlaw.org
uled castes and scheduled tribes with
duties to investigate and monitor all
matters relating to safeguards provided for them, to inquire into specific complaints and to participate and
advise on the planning process of
their socio-economic development
etc. Article 330 and Article 332 of the
Constitution, respectively, provide
for reservation of seats in favour of
the SCs and STs in the Lok Sabha and
in the legislative assemblies of the
states.
The above mentioned constitutional measures are made operational through some Acts with penal
provisions like the PCR (Protection
of Civil Rights) Act, 1955 followed
much later by the SC/ST (Prevention
of Atrocities) Act, 1989. To further
ensure that the financial resources
needed to implement the penal and
developmental constitutional provisions for the protection and welfare
of the SC/STs, two financial policies
— SCP (special component plan) and
TSP (tribal sub-plan) were formulated in 1979 to factor in to the national
planning commission and the state
planning units. Statutory bodies like
the national scheduled castes commission and national scheduled
tribes commission have been set up
to oversee the implementation of
such constitutional policies. These
provisions are together meant to
address four critical areas of castebased discrimination experienced by
Scheduled castes
have been among
the most neglected,
marginalised and
exploited lot. The
scourge of
untouchability is
a blot on the Indian
civilisation. Despite
the constitutional
declaration of its
abolition, untouchability
persists in many
subtle and not so
subtle forms
Dalit communities namely: protection against untouchability and violence; promote participation in
development
and
governance;
ensure adequate resources; and monitoring, oversight and expansion of
rights for the dynamic uplift of the
marginalised communities.
Gaps in PoA Act2
The implementation of this protective and preventive Act falls short in
many ways both at the union and
state levels.
(i) Non-registration of the cases under
the Act and deterred from making complaints of atrocities: Under reporting of
atrocities is a very common phenomenon. The national human rights
commission in its report on ‘atrocities against scheduled castes, 2002’
observes that “even in respect of
heinous crimes the police machinery
in many states has been deliberately
avoiding SCs and STs (Prevention of
Atrocities) Act, 1989”. The report further states “police resort to various
machinations to discourage scheduled castes/scheduled tribes from
registering a case, to dilute the seriousness of the violence, to shield the
accused persons from arrest and
prosecution and, in some cases, the
police themselves inflict violence”.
(ii) Not filing cases under appropriate
sections of the Act: It was deduced
from the reports of various human
49
DALIT RIGHTS
rights organisations, NHRC and
other commissions of various state
governments that the first information reports (FIRs) were registered
without reference to proper sections
of the PoA Act. As per national crime
records bureau (NCRB) reports, 67
percent of cases during 1992-2000
and 64.9 percent during 2001-2007
were not registered under SC/ST
(PoA) Act. Out of registered cases, in
84.4 percent cases wrong provisions
were applied to conceal heinous,
inhuman and violent nature of the
atrocities inflicted upon the Dalits.
(iii) Delay in filing of chargesheet:
Chargesheets in atrocity-related
cases are invariably filed late. Besides
non-registration of cases despite
merit, there were delays in investigation, collusion with offenders and
manipulation of witnesses and evidence, all of which contributed to
reduce the effectiveness of legislation
on atrocities. The state police department of Andhra Pradesh, in response
to a query raised by the chief justice
of the AP High Court on the PIL filed
by Sakshi human rights watch,
admitted that 14,452 cases were
delayed.
(iv) Accused not arrested or invariably
released on bail: Various reports have
50
shown that either the accused are
invariably not arrested and allowed
to roam free or released on bail even
in cases of serious crimes. Based on
several representations made to
Justice K Punnayaya commission
constituted by the Andhra Pradesh
government, the commission stated
that the sub-inspectors or circleinspectors did not arrest the
assailants who committed the atrocities even though FIRs were recorded
and cases were registered. The judicial trends observed by an NHRC
study reveal that the prosecutions
are quashed on the ground that the
offence was not committed on
account of the victim being a SC or a
ST but on other grounds such as lust
for sex, illicit intimacy in cases of
rape, political rivalry, enmity in case
of murder, grievous hurt, etc.
Secondly there is a tendency to
accept evidence only from nonscheduled
castes/non-scheduled
tribes people, and thirdly personal
beliefs and prejudices determine
appreciation of evidence, determination of guilt and award of judgement.
These beliefs have the unmistakable
print of social biases, both caste and
gender.
(v) Filing false and counter cases against
Dalit victims: Police deters the victims
by colluding with the accused in filing false counter cases. The counter
reports are indiscriminately registered against the SCs and STs. Based
on the counter reports police arrest
the Dalits and in most cases they do
not even entertain the cases by the
SCs and STs.
(vi) Compensation prescribed under the
Act is invariably not paid: The NHRC
report, 2002 observes “the breach of
duties by civil administration is committed in the following manner:
(i) Not conducting an inquiry, thereby evading duty to give relief and
compensation
(ii) Making false promises to give
compensation and delay in distributing cash as monetary relief
(iii) Not providing allowances, such
as travel allowance relating to trial
and investigation for witnesses and
victims, maintenance expenses and
daily allowance, medical expenses,
etc.
The administration ignores social
boycott of scheduled castes which
leads to denial of employment and
access to basic necessities like drawing water from the common village
well or pond, ration shop, denial to
buy or sell any goods in the village,
DALIT RIGHTS
etc., to pressurise the Dalits into submission and cause intense mental
agony to them though no physical
violence may take place in the
process.
(vii) No access to legal aid: A report of
the national commission for scheduled castes and scheduled tribes has
found that special legal assistance as
envisaged by the SC/ST Act was not
extended to SCs and STs even in one
of the thousands of cases looked into
by the commission. On the other
hand, the accused have recourse to
good lawyers. A centrally sponsored
financial assistance scheme was introduced, initially for effective implementation of the PCR Act, 1955 in the
year 1974-75. The scheme was later
(1990-91) extended to cover scheduled
castes
and
scheduled
tribes
(Prevention of Atrocities) Act, 1989 as
well. But the NHRC report states that:
(a) The funds released to states bear
no correspondence to the volume of
atrocity cases committed or registered therein.
(b) The withdrawal of assistance by
some states is extremely low despite
the sizeable percentage of SC population and also high incidence of cases
of violence against them.
(c) There is an uneven distribution of
monetary assistance across years in
various states. Some states are
drawing disproportionately large
amounts in certain years.
(d) The lower level of demand from
those states which have a higher percentage of SC population as well as
high incidence of cases of atrocities
can only be explained by lack of interest in implementation of the Act.
(viii) Investigation not done by the competent authorities: Investigations are
invariably done in a shoddy manner
and are often not done by the deputy
superintendent of police as mandated
by the Act, but by the junior judicial
officers rendering the trial illegal. An
analysis of numerous cases carried by
various organisations show that
investigations are done by a police
officer of lower rank than a DSP.
(ix) Committees either yet to be formed
or are dysfunctional: State level and
district level vigilance and monitoring committees are ineffective.
Special officers, nodal officers are
neither appointed nor are available
for discharging their duties.
In addition to the above deficienwww.combatlaw.org
cies in the implementation of the PoA
Act on individual cases, there are a
number of provisions which speaks
of institutionalised negligence and
non-implementation too as seen in
the table below.
Gaps in implementation of SCP
The special component plan (SCP) as
a strategy for development of SCs, is
traced to the resolution adopted by
the conference of state ministers for
backward classes held in April 1975.
They adopted a resolution “calling
for the quantification of efforts made
by each sector”, and of benefits from
schemes in each general sector for
development of the scheduled castes.
Vide letter dated 5.5.1979, Ajit
Mazoomdar, secretary, planning
commission directed all states to prepare separate SCPs. The letter stated:
effort to radically rework the whole
strategy of Dalit welfare and empowerment. The broad objective of the
SCP is to bring about comprehensive
socio-economic and educational
development of the scheduled castes.
In 1980, the then prime minister
Indira Gandhi declared that the SCP
“is not only to be improved quantitatively and qualitatively but should
also be implemented satisfactorily”.
As per the guidelines issued by
the Planning Commission3, the major
objectives of the special component
plan (SCP) are:
(1) Substantial reduction in poverty
(2) Creation of productive assets in
favour of SCs to sustain the growth
likely to accrue through development efforts
(3) Human resource development of
the SCs by providing adequate edu-
Provisions
States
implemented
States not
implemented
Rule 3-Precautionary and Preventive
Measures
11
23
Rule 8-SC/ST Protection Cell
17
17
Rule 9-Nodal Officer
29
5
Rule 10-Special Officer
14
20
Rule 15 (1)-Contingency Plan by State
Government
9
25
Rule 16-State Level
Monitoring Committee
and
21
13
Rule 17- District Level Vigilance and
Monitoring Committee
21
13
Section 14 Special Courts
9
25
Vigilance
Source: Reports of ministry of social justice & empowerment
“Because SCs were suffering from
dual disabilities of severe economic
exploitation and social discrimination, and who, while constituting
only 15 percent of the total population of the country, accounted for a
much larger proportion in the poverty belt in the country.”
Various programmes and outlays
in the SCP are envisaged not as small
token provisions but they should
adequately cater to a substantial proportion of the number of SC families
in the relevant occupational categories. The plan is visualised as an
cational and health services
(4) Provision of physical and financial security against all types of
exploitation and oppression
(5) Earmarked funds for SCP from
central ministry/department plan
outlay at least in proportion of SC
population to the total population of
the country
(6) SCP funds should be non-divertible and non-lapsable
(7) A dedicated unit may be constituted in every central ministry/
department for the welfare and
development of SCs as nodal unit for
51
DALIT RIGHTS
formulation and implementation
of SCP
(8) Placing the funds earmarked for
SCP at the disposal of every nodal
unit concerned, which in turn will reallocate the funds to the sectoral
departments for implementing
schemes directly relevant to the
development of scheduled castes
(9) Placing the funds earmarked for
SCP
under
separate
budget
head/sub-head for each central ministry/department for implementing
the plan
(10) Schemes should have direct benefits to individuals or families
belonging to Dalit community.
(11) Priority should be given for providing basic minimum services like
primary education, health, drinking
water, nutrition, rural housing, rural
electrification and rural link road for
SC hamlets/habitations
(12) Schemes to develop agriculture
and allied activities like animal husbandry, dairy development, vocational training, etc. that provide a
source of livelihood to the SC population
(13) Innovative projects that draw
upon institutional finance to supplement plan allocations may be drawn
upon
A study done by Dalit Aarthik
Adhikar Aandolan of national campaign on dalit human rights reveals
the trends of allocations made under
SCP in the union budget in the recent
years:
innovative schemes that can benefit
the SCs.
(c) SCP allotments are diverted to
non-SC related expenses or for other
purposes
(d) No dialogue with the SC community on the schemes relevant for their
welfare takes place during the preparation of the union or states’ budgets
In 2009-2010 union budget, Rs 23,
287 crore is denied to the SCP.4The
amount denied in the union budget
alone during the past five years
(2005-06 to 2009-2010) comes to the
tune of Rs 76,690 crore. If one were to
add the respective denials from the
state budgets across the country, the
denial crosses Rs 1,00,000 crore. One
sees a similar trend of denial in the
tribal sub-plan (TSP) too.
Non-allocation of funds
One of the objectives of the SCP is to
provide “physical and financial security to SCs against all types of
exploitation and oppression”. The
ministry of social justice &
Empowerment (MSJE) is entrusted
mainly with the task of empowerment of the disadvantaged and
marginalised target groups. In addition to several other responsibilities,
the ministry is responsible for the
enforcement of the PCR Act, 1955
and SC/ST (PoA) Act, 1989.
To effectively implement the Act,
the ministry has to provide for special courts for the trial of offences and
for the relief and rehabilitation of the
Financial
Year
Total Plan
Expenditure*
Due as per
SCP
SCP
Allocation
Denied
Amount
2005-06 (RE)
113043
18312.966
6578.59
11734.38
2006-07(RE)
134757
21830.634
8473.94
13356.69
2007-08(RE)
158491
25675.542
12367.77
13307.77
2008-09(RE)
183528
29731.536
14727.02
15004.52
Total amount denied to SCs from 2005-2009
*(All figures in Rs. crore)
The findings of the study detected various lapses in the plan:
(a) Allocations to SCP are critically
low and flout the norms set by the
planning commission
(b) In the states of Bihar, Uttar
Pradesh, Orissa and Madhya
Pradesh the allocations are as per the
proportion of the Dalit population
but are only notional and do not have
52
53403.36
victims of such offences and for matters connected therewith or incidental thereto. The nodal ministry provides financial resources for implementation of the PCR Act, 1955 and
the SC/ST (POA) Act, 1989 through
the special central assistance (SCA)
from the union government which
amounts to 50 percent contribution
to the total expenditure to the states
Ministry of social
justice & empowerment
is entrusted mainly
with the task of
empowerment of the
disadvantaged and
marginalised target
groups. In addition to
several other
responsibilities, the
ministry is responsible
for the enforcement of
the PCR Act, 1955
and SC/ST (PoA)
Act, 1989
and 100 percent of the total expenditure to the union territories. Despite
the continuing violence against Dalit
communities, the allocation of funds
under the SCA shows a steady
declining trend. There has, in general, been an inherent lack of interest
and seriousness on part of planning
and implementing machinery to
achieve the objectives of the
Constitution.
The SC/ST Act mandates
taluk/mandal level officers responsible for dispersing the TA/DA /minimum wages and compensation,
which in turn has to be monitored by
the district magistrate/collector and
district monitoring and vigilance
committee. Separate funds need to be
given to police stations/courts
towards TA/DA of victims and witnesses in FIR investigation and in
turn has to be monitored by the
superintendent of police (SP) and
district judge (DJ). There is also clear
direction that necessary arrangements for providing travelling and
maintenance expenses, reimbursement of the payment of medicines,
special medical consultation fee,
costs towards blood transfusion, etc.
should be made to the victims of
atrocities.
However, some fact-finding studies have brought out the following
violations faced by the Dalit victims
DALIT RIGHTS
in accessing financial provisions
guaranteed under the Act:
(i) Victims of atrocity are not paid
minimum wages compensation
while they access the legal system
(ii) Immediate relief in accordance to
the SC/ST (PoA) Rules, 1995 is not
provided
(iii) Victims are not paid rehabilitation provided to them as per the
Rules, 1995.
(iv) Victims are neither paid any
TA/DA/wage during investigation or
trial nor are they provided with any
medical expenses
In view of this kind of dismal
state of affairs, the NHRC, in 2002,
suggested some additional measures
that the state/national human rights
commission may monitor provisions
regarding payment of compensation
to victims of atrocities and their rehabilitation. Secondly, states may be
directed to make the district magistrate solely responsible for ensuring
that the compensation money given
to the victims is effectively utilised to
provide them with sustainable rehabilitation. The parameters of such
rehabilitation may be laid down in a
manual. State and district level monitoring and vigilance committees
may further monitor the status of
rehabilitation. Special rapporteurs
may report to the states/national
human rights commission about the
status of rehabilitation and morale of
victims of atrocities in important
cases.
www.combatlaw.org
State and district-level vigilance
and monitoring committees may
meet regularly as per prescribed provisions and human rights organisations and activists working for and
with scheduled castes may be
involved in their deliberations as
members/ invitees. Their proceedings may be adequately publicised
and also placed on the website of the
state governments.
One cannot overlook the need for
adequate financial outlays for the
effective implementation of the
SC/ST PoA Act, apart from genuine
policy concern. For instance, in 200607, the special central assistance
released by the central government
for the purpose of effective implementation of the PoA Act was Rs 36.4
crore which forms 50 percent of the
proposed allocation. States are supposed to share equivalent to the
amount
received
as
SCA.
Considering this the actual expenditure for the purpose is claimed to be
Rs 71 crore which also includes the
cost incurred for the maintenance of
the trial courts. If one were to assume
that 40 percent of the costs would go
in maintaining the institutions and
60 percent would be available to be
allocated to the payment of compensation to victims in any year, during
2007 the number of cases registered
by the NCRB which attract compensation are 29,825. Minimum compensation when calculated towards travel, medical and minimum wages
compensation for victims and witnesses as per the guidelines would
work out to be approximately Rs 90
crore whereas the available amount
out of the proposed sum of Rs 71
crore is only Rs 43 crore, less by more
than half of what is needed.
As per the report of the 29th
standing committee, ministry of
SJ&E, 2008, the status of SCP stands
as follows:
(i) Out of the 27 states/UTs availing
SCA to SCSP funds, 18 states had not
reported the flow of funds from their
annual state plan outlay to SCSP.
(ii) States like Bihar with SC population 15.70 percent, Kerala with 9.8
percent and Rajasthan (17.20 percent)
have not allocated any funds from
their annual plan to their SCSP during 2007-08.
(iii) Some states report under allocation of funds when compared to their
population ratio like Andhra
Pradesh has SC population of 16.20
percent and SCSP outlay 7.53 percent, Himachal Pradesh got SC population 24.70 percent, SCSP outlay 11
percent, and in Punjab SC population
is 28.90 percent whereas SCSP outlay
is 26.02 percent. Out of the eight
states/UTs which had allocated funds
from their annual state plan outlay to
SCSP only Gujarat, Tamil Nadu, UP
and West Bengal have adhered to the
prescribed norms and allocated
funds for SCSP from their annual
state plan outlay in proportion to the
percentage of their SC population.
53
DALIT RIGHTS
SC/ST PoA Act cases in 2007 and expenses for effective implementation (amount in Rs lakhs)
State
Cases for
Compens
ation in
SC P0A
Act)
Average
Relief &
rehab per
case
Total
Compens
ation to
be given
3261
0.35
0
0.35
Assam
125
0.35
43.75
Bihar
2786
0.35
975.1
C'garh
511
0.35
178.85
AP
AP (NE)
Goa
No of
Special
Courts
Average
minimum
Expenses
for spl
courts
Total Spl
Court
expenses
Fund
needed
for effective
implementation
of POA
1141.35
8
15
120
0
12
15
180
15
11
7
0
0.35
0
Gujarat
1038
0.35
363.3
Haryana
227
0.35
HP
87
0.35
J&K
amount
transferred
from
Centre
to states
Share of
States
Gap
1261.35
310.49
310.49
180
N.A
N.A
NA
0
43.75
9.5
9.5
24.75
15
165
1140.1
26.63
26.63
1086.84
15
105
283.85
53.27
53.27
177.31
640.37
15
0
0
4.45
4.45
-8.9
15
150
513.3
120.65
120.65
272
79.45
15
0
79.45
97.83
97.83
-116.21
30.45
15
0
30.45
0
0
30.45
10
0
0.35
0
15
0
0
0
0
0
J'khand
538
0.35
188.3
15
0
188.3
0
0
188.3
K'taka
1827
0.35
639.45
15
105
744.45
664.37
664.37
-584.29
Kerala
477
0.35
166.95
15
0
166.95
26
26
114.95
MP
4106
0.35
1437.1
15
435
1872.1
856.1
856.1
159.9
Maha
1146
0.35
401.1
15
0
401.1
397.31
397.31
-393.52
M'pur
0
0.35
0
15
0
0
0
0
M'laya
0
0.35
0
15
0
0
0
0
Mizoram
0
0.35
0
15
0
0
0
0
N'land
0
0.35
0
15
0
0
0
0
Orissa
1355
0.35
474.25
15
0
474.25
49.75
49.75
374.75
Punjab
177
0.35
61.95
15
0
61.95
40
40
-18.05
Raj
15
255
1715.9
279.34
279.34
1157.22
15
0
3.5
1.9
1.9
-0.3
15
60
667.95
0
0
667.95
15
0
2.8
0
0
2.8
4174
0.35
1460.9
Sikkim
10
0.35
3.5
T'nadu
1737
0.35
607.95
Tripura
8
0.35
2.8
UP
7
29
17
4
6136
0.35
2147.6
15
600
2747.6
553.93
553.93
1639.74
U'khand
71
0.35
24.85
15
0
24.85
0
0
24.85
WB
3
0.35
1.05
15
0
1.05
0
0
1.05
TOTAL
29800
The following table provides an
analysis of the inadequate financial
provision at the state level in the
implementation of the SC/ST Act:
The above table is an effort to correlate the expenditure that will be
incurred by every state to maintain
its special courts and the minimum
compensation to be paid for the
number of crimes registered by the
national crimes record bureau.
Almost all states show that the
amount allocated and accessed by
them under this provision is inadequate for the compensation and support to the victims.
54
40
Recommendations
(1) The government is duty bound to
ensure the protection, welfare and
empowerment of SCs who have suffered from caste and untouchabilitybased exclusion and discrimination
throughout ages and still suffer the
stigma of untouchability even after it
has been declared as an offence
under the law of the land.
(2) The SC/ST PoA Act and the SCP
are important measures to protect
and promote the welfare and development of the Dalits and need to be
given utmost importance in their
successful implementation. Despite
these provisions the atrocities continue unabated and the economic and
development inequalities between
SCs and non-SC/ST communities
continue to increase.
(3) The provision of SCA in SCP
needs to be ensured. The allocation
from the centre should be on the
basis of the population and the rate
of crimes of previous years.
(4) The provisions under the SC/ST
Act need to be strictly followed particularly in terms of immediate relief
and aid to victims, support for legal
aid, for constant follow up of the case
and relief and rehabilitation.
DALIT RIGHTS
(5) The state needs to take its responsibility for prevention of atrocities
more seriously by identifying the
atrocity-prone areas, sensitising
police officials, and ensuring easy
access of officials to people.
(6) The functioning of the special cells
as well as the implementation of the
SC/ST (PoA) Act to be brought under
a separate social empowerment commissionerate specially created with
three separate wings — relief and
rehabilitation (pecuniary matters),
investigation and prosecution (penal
matters) and education and monitoring (matters relating to awareness,
education, committees and monitoring cells). This commissionerate will
be headed by an IAS officer, independent charge, not below the rank of
secretary with two joint secretaries
and a police officer not below the
rank of inspector general holding
charge of three units. This commissioner will be nominated as the nodal
officer under the Act and Rules, 1995.
(7) In the backdrop of a deep attitudinal mindset change that is required,
non-responsive nature of the problem of untouchability, coupled with
gaps in the implementation of the
PoA Act despite the legislative provisions and executive orders, a massive
public awareness and education campaign should be initiated directly by
the central government. It is recommended that this task be entrusted to
the ministry of information and
broadcasting. This campaign should
be on the scale of Sarva Shiksha
Abhiyan or the ‘Pulse Polio’ scheme
with the following guidelines:
(i) The campaign to be implemented
by the social empowerment commissionerate at the state level
(ii) Hoardings, posters and pamphlets to be prepared specifically for
this campaign
(iii) This campaign will include
Doordarshan and other radio programmes, special documentaries,
road shows and poster campaigns
(iv) The campaign may use grassroots cultural troupes, which will
stage street plays and mobilise people on the issue
The total cost of the awareness and
education campaign — for cultural
programmes per year may be estimated around Rs 225 crore, hoardings, posters and pamphlets to cost
Rs 25 crore, and documentaries and
www.combatlaw.org
The ministry of
social justice &
empowerment may
formulate a new central
sector scheme in the
nature of contingency
arrangement to provide
instant monetary relief
to the victims of
relatively heinous
offences of atrocities
under the Scheduled
Castes and the
Scheduled Tribes
(Prevention of Atrocities)
Act, 1989
other audio-visual media Rs 10 crore
per year — totaling to Rs 260 crore.
(8) In order to tackle the mammoth
count of pending cases both at the
regular courts as well as at the special
designated courts, it is suggested that
the special courts should come in line
with the speedy trial courts to clear
the backlog of pending cases. Each
speedy trial court costs Rs 14 lakh per
year and there are 192 atrocity-prone
districts, which need an allocation of
Rs 26.88 crore per year. This amount
needs to be borne by the department
of Justice from the SCSP allocation.
(9) The concerned state government
/UT administration should set up victims and witnesses protection cells at
district levels under the social
empowerment
commissionerate
headed by a nodal officer in collaboration with NGOs and lawyers
amongst the scheduled castes, to provide protection and confidence to
fight for justice.
(10) The ministry of social justice &
empowerment may formulate a new
central sector scheme in the nature of
contingency arrangement to provide
instant monetary relief to the victims
of relatively heinous offences of
atrocities under the Scheduled Castes
and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989. The relief
amount under this scheme be directly provided to the victims by the
ministry once the FIR of the offence
under the Act has been registered, as
apprised by the concerned state government/ UT administration or state
offices of the national commission for
scheduled castes and national commission for scheduled tribes. The
relief amount up to Rs two lakh be
provided to each victim, with the
approval of the ministry. This
amount would be in addition to the
minimum amount of relief as prescribed under Rule 12(4) of the
55
DALIT RIGHTS
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities)
Rules, 1995. For this new scheme, an
allocation of Rs five crore be provided for XI five year plan.
(11) The concerned state government
/union territory administration
should set up a SC/ST cell in each
police station to ensure timely registration of the cases under proper sections of the two Acts.
(12) The department of justice in the
central government may establish a
special law academy to deal with the
legal issues of educating the judicial
officers, public prosecutors, police
officials and other duty bearers and
to carry out the necessary research
for effective implementation of these
two Acts. The cost of the initial set up
of Rs 10 crore and the subsequent
running costs of Rs four crore per
year amounting to Rs 26 crore for the
XI Plan, to be borne by the department of justice under the scheduled
castes sub-plan (SCSP).
(13) The department of justice to
ensure that state governments issue
government orders (GOs) from
departments of revenue, medical &
health and other concerned departments to prevent delay in getting
important documents such as the
FSL report, post-mortem report,
wound certificates, caste certificate,
etc within a specific timeframe of not
more than 15 days and bring concerned officials under the purview of
section 4.
Annexure I
The list of departments/ministries in the Government that have allocated ‘nil’ budgets to SCP
Total Plan
Allocation in 2007-08
Plan Allocation
Earmarked for SCs
(Rs. Crore)
(Rs. Crore)
Dept. of Agr. Research & Education
1620
Nil
Dept. of Animal Husbandry, Dairying & Fisheries
910
Nil
Atomic Energy
4596
Nil
Dept. of Chemicals & Petrochemicals
209
Nil
Dept. of Fertilizers
45
Nil
Ministry of Civil Aviation
200
Nil
Ministry of Coal
250
Nil
Dept. of Commerce
1475
Nil
Dept. of Industrial Policy and Promotion
500
Nil
Dept. of Posts
315
Nil
Dept. of Telecommunications
340
Nil
Ministry of Company Affairs
47
Nil
Dept. of Consumer Affairs
213
Nil
Dept. of Food & Public Distribution
85
Nil
Ministry of Culture
557
Nil
Ministry of Development of NE Regions
80
Nil
Earth Sciences
690
Nil
Ministry of Environment & Forest
1351
Nil
Ministry of External Affairs
500
Nil
Dept. of Economic Affairs
824.69
Nil
1
Nil
250
Nil
Ministries/Departments
Dept. of Expenditure
Ministry of Food Processing Industries
56
DALIT RIGHTS
Dept. of AYUSH
488
Nil
Dept. of heavy Industry
450
Nil
Dept. of Public Enterprises
10
Nil
Ministry of Home Affairs
459
Nil
Housing and Urban Poverty Alleviation
500
Ministry of Information & Broadcasting
475
Nil
Law & Justice
245
Nil
Ministry of Mines
154
Nil
Ministry of New and Renewable Energy
626
Nil
Ministry of Panchayati Raj
100
Nil
Min. of Personnel, Public Grievances & Pensions
90
Nil
Ministry of Planning
90
Nil
Ministry of Power
5483
Nil
Dept. of Land Resources
1500
Nil
Dept. of Drinking Water Supply
7560
Nil
Dept. of Scientific & Industrial Research
1070
Nil
Dept. of Biotechnology
675
Nil
Dept. of Shipping
753
Nil
12499.32
Nil
3420
Nil
Min. of Statistics & Programme Implementation
92
Nil
Ministry of Steel
66
Nil
Ministry of Tourism
953
Nil
Dept. of Urban Development
2335.52
Nil
Ministry of Water Resources
600
Nil
Ministry of Minority Affairs
500
Nil
Dept. of Road Transport & Highways
Dept. of Space
(14) Since it is the duty of the national
commission for scheduled castes
under Article 338(9) of the Constitution
to investigate and monitor all matters
relating to the constitutional safeguards provided for the scheduled
castes and to inquire into specific complaints with respect to the deprivation
of rights and safeguards of the SCs,
therefore, the commission should hold
an annual meeting of the heads of the
PCR cells set up in al states/UTs and
the nodal and special officers designated under the PoA Act and review
implementation of the two Acts.
www.combatlaw.org
(15) Towards elimination of castebased discrimination and harassment in educational institutions, following course of action is recommended to be taken by the ministry
of human resource development:
(i) The educational institutions
should establish internal mechanisms to receive and register a complaint and maintain the confidentiality of all parties in the interest of fairness to both complainant and
respondent. The institutions shall not
provide disclosure unless required
by legal or disciplinary processes.
(ii) The educational institutions
should frequently take disciplinary
action whenever a complaint of any
caste-based harassment is substantiated. The disciplinary action should
also be taken against those who bring
false and frivolous charges.
(iii) The institutes should integrate
caste discrimination component as
part of workshops and seminars for
teachers, professors, officials, administrators and participants, wherever
as the case may be. The procedures
should be monitored by the institution and reviewed periodically.
57
DALIT RIGHTS
Annexure II
Fund Released
Sl.
Name of
States/UTs
(Fig. in Lakh)
2006-07
2007-08
(Dec-07)
2008-09
338.383
270.860
310.49
787.56
-
-
9.5
-
2005-06
1
Andhra Pradesh
2
Assam
3
Bihar
13.000
13.000
26.63
27.28
4
Chhattisgarh
46.380
52.345
53.27
40.748
5
Goa
0.100
-
4.45
1
6
Gujarat
281.030
240.085
120.65
217.46
7
Haryana
73.960
61.070
97.83
59.925
8
Himachal Pradesh
-
-
-
10.45
9
Jharkhand
-
40.000
-
-
10
Karnataka
852.662
780.165
664.37
670.38
11
Kerala
117.250
98.616
26
135.155
12
Madhya Pradesh
820.010
712.195
856.1
574.745
13
Maharashtra
426.860
481.334
397.31
274.978
14
Orissa
01.20(Adhoc)
7.780
49.75
60
15
Punjab
21.375
55.867
40
50
16
Rajasthan
87.000
21.000
279.34
157.895
17
Sikkim
1.750
2.425
1.9
5.95
18
Tamilnadu
160.720
43.000
19
Tripura
-
-
-
0.5
20
Uttar Pradesh
414.105
663.235
553.93
931.285
21
UA/UK
37.000
4.000
-
5.769
22
West Bengal
-
-
-
-
23
And.& Nicobar Islands
-
-
-
-
24
Delhi
-
-
-
-
25
Dadra & Nagar Haveli
50.000
56.802
42.54
2.655
26
Pondicherry
37.945
40.000
40.79
50
27
Chandigarh
-
-
3
3
28
Daman & Dui
-
3.9
4.571
3643.779
3581.75
4306.45
Total
3831 .000
235.14
Source: Ministry of social justice & empowerment, Govt. of India, New Delhi. (www.socialjustice.nic.in)
Footnotes:
1. http://www.dnaindia.com/india/report_pmshocked-over-low-conviction-rate-of-casesunder-sc-st-act_1288180
2. Various reports of SC/ST Commission,
NHRC report on Atrocities against Dalits,
Punnaiah Commission report, reports of
concerned ministries and reports/studies of
58
various human rights organizations
as well as judgments at various levels
were analysed to identify major
lacunae in enforcement of the Act
from registration of complaint to
judgement.
3. Eleventh Plan Year Plan 2007-2012,
Vol I, Planning Commission, GOI, 2008
4. Calculations are made based on the
Union Budget presented to the Parliament
in July 2009
–The authors are associated
with the Dalit Arthik
Adhikar Andolan/NCDHR
DALIT RIGHTS
Tardy implementation
of the Act in Rajasthan
ntouchability and caste-based
discrimination is still alive in
its very crude form in
Rajasthan, especially in the villages
despite constitutional safeguards,
special enactments like the PCR Act,
SC/ST Act, 1989 and its Rules 1995.
The atrocities against Dalits, women
and marginalised people, are
increasingly rising day by day in the
state partly because of Dalit assertion
and mainly due to the apathetic attitude of the state machinery to combat it.
The villages in Rajasthan are the
den of inhumane practice of
untouchability where Dalits are
barred from entering the temples, no
access to water resources, Dalit
bridegrooms are not allowed to ride
on horseback, Dalits cannot even
wear clothes of their choice in certain
pockets of Rajasthan. Though the
Dalit participation in social activities
has slightly improved, yet, the SCs
and STs have to wait for their turn to
eat only after the non-Dalits have finished off their palates, and in some
places the former are even expected
to wash the dishes of the upper
castes.
In Rajasthan, Dalit children are
still growing under the stigma of
being from an inferior and untouchable class. In many places, Dalit students are asked to do manual work
in schools and to sit in the last row of
the classroom. All the more, in some
places they are served mid-day meal
separately from other children. In the
interiors of Rajasthan, incidents of
barbers refusing to cut hair of Dalits
have been reported.
The centre for dalit rights, based
in Jaipur, has been involved in monitoring of atrocities and excesses
against Dalits and women in
Rajasthan, along with follow ups of
the serious cases of atrocities with
the state, district officials and various
other forums like human rights com-
U
www.combatlaw.org
mission, SC and ST commission and
women commission, to ensure that
their rights are fully and effectively
protected by strict enforcement of
legal safeguards like the SC/ST (PoA)
Act. Figures of atrocities monitored
by CDR during 2008 in the state are
given below:
Type of Atrocity
No.
Untouchability Practice
380
Murder
77
Rape
72
Violence against Women
149
Mass violence
99
Violence against Children
29
Bonded labour
9
Land Dispute
140
Custodial Torture/Police Torture
27
Assault on Dalit Bridegroom
11
Violence during Elections
181
Negligence at the part of the
Administration
57
Others
T ota l
30
1, 261
Police negligence and collusion
Dalit victims in Rajasthan are
deterred from making complaints of
Topping the list of
atrocities committed
against Dalits, the
remedial steps taken for
the welfare of the SC/ST
victims of atrocities in
Rajasthan have been
almost negligible. The
affected groups
experience violence on
daily basis and the
deterrence envisaged in
the laws especially
enacted for this purpose is
not in evidence because
the implementation of
important criminal laws
like the PCR Act and
SC/ST (PoA) Act has
been dismal, writes
PL Mimroth
59
DALIT RIGHTS
atrocities and as a result FIRs are
rarely registered or if so registered
late. Scheduled castes and scheduled
tribes are discouraged from registering the case, to dilute the seriousness
of the violence, to shield accused
from getting arrested and weaken
the prosecution and in some cases,
the police themselves inflict violence.
Under reporting of atrocities under
the SC/ST (PoA) Act is a very common phenomenon. It has been further observed "even in respect of
heinous crimes, the police machinery
in Rajasthan has been deliberately
avoiding to register cases under the
SC/ST Act". The non- registration of
cases, apart from reflecting caste bias
and corruption, has also been
attributed to the pressure on the
police to keep reported crime rates
low in their jurisdiction. In addition,
the undue political and administra-
Summary of a case where
police diluted rape charges
T
he police headquarters, Jaipur has
ordered an enquiry against the DSP
Rajendra Gupta who had toned down
charges against a rape accused by
deleting a section of the charge under
the SC/ST (PoA) Act without giving
proper justification. The PHQ believes
that by doing so, the Dy SP has
allegedly avoided a life term for the
accused in the rape case of a Dalit
woman.
The incident took place under the
Kotwali police station of Sawai
Madhopur district (Rajasthan) on July
23, 2007. The accused, Ghan Shyam,
Ram Swroop & Ram Lal had allegedly
beaten up a Dalit girl brutally and
later raped her.
The police lodged an FIR against
the three accused under provisions of
sections 376(f) of the IPC (gang rape),
323 (punishment for voluntarily causing hurt), 341 (punishment for
wrongful restrain) and section 3
(I)(XII), 3(2)(V) of the SC & ST Act and
entrusted investigation to the then
deputy superintendent of police
Rajendra Gupta.
Police had arrested the accused
and a chargesheet was produced
before the trial court on October 17,
2007 but it was found that the initial
charges made under the sections of
the SC/ST Act were missing in the
chargesheet.
60
tive pressure on the police force is
also one of the factors leading to nonregistration of the cases of Dalit victims. The murder cases in the Dalit
community are often termed by
police as suicide or accident to shield
the perpetrators.
The study conducted by the CDR
in 2008 also indicates that around 12
percent of the FIRs were lodged in
Rajasthan as a result of legal intervention by filing petition in the
courts under section 156 (3) of CrPC.
In many cases where police do
register a case under the SC/ST Act,
they do not cite proper sections. For
serious crimes, which include murder, rape, destruction of property,
dispossession of land and fouling of
drinking water sources, etc., police
are registering cases under section
3(1)(X) of the Act. This section is
related to insulting or intimidating a
SC/ST person with intent to humiliate him/her in public view. One of
the reasons for police commonly citing this section is that this clause
denotes to the most minor offence
under the Act and generally attracts
the least punishment or to do away
with the punishment. Majority of the
cases are never brought within the
purview of the law at all due to
police failure/refusal to register the
case, thereby, neglecting their official
duties and colluding with the perpetrators of atrocities.
Chargesheet delay
Besides non-registration of cases
despite merit, there are delays in
investigation and manipulation of
witnesses and evidences, all contributing to reduce the effectiveness
of legislation on atrocities. The CDR
survey revealed that in Rajasthan,
mere 4.9 percent of cases registered
under the Atrocities Act were actually chargesheeted. Only 9.3 percent
cases were chargesheeted within the
stipulated time of 30 days and even if
it is the CrPC time limit of 90 days,
chargesheets are filed only in 31 percent cases. For about 28 percent of
cases the investigating agency is taking more than 365 days to book the
culprits. Therefore, delay in investigation, partial and blind role of the
investigating officer and delayed
chargesheet filing is a common feature with regard to the atrocity cases
of Dalits.
The NHRC and the Justice
Punnaiah Commission of Inquiry in
Andhra Pradesh have stated in their
reports, "the sub-Inspector or circle
inspectors did not arrest the perpetrators who committed the atrocities
even though the sub-Inspector or the
inspector of police recorded FIRs and
registered cases". Non-arrest of perpetrators in serious offences are
resulting in quashing of the whole
case since the accused resort to
unethical means like pressurising the
victim to withdraw the case, intimidating the witness or the victim,
destroying/diluting the medical evidences connected with the case etc.
In this long testing process the victim
and his/her family is completely broken down and lose faith in the rule of
the law. In number of cases, it is also
observed that the main perpetrators
of an atrocity sometimes co-opt a few
Dalits members with them, taking
advantage of local differences among
the Dalit community, and even promote and engineer crimes but get
them executed by the Dalits only.
It has been witnessed that in
number of cases, police has colluded
with the accused in filing false
counter cases against Dalit victims. It
is generally observed "the tendency,
on the part of police in not registering cases on the complaint given by
the SCs and STs is on the increase. At
the same time, the tendency on the
part of police to entertain indiscriminately the counter complaints and to
arrest the SC complainants on the
basis of counter complaints is
increasing".
"When the SC or ST victim of
atrocity reports to the sub-inspector
or circle inspector in-charge of a
police station, if he records an FIR
and registers a case, the sub-inspector or circle inspector should act on
the complaint of the victim and arrest
the assailant or the one who committed the atrocity. But, the sub-inspector or circle inspector who recorded
the FIR and registered the case did
not arrest the assailants except in rare
cases." (NHRC report on atrocities
against scheduled castes, 2002).
The NHRC and the Punnaiah
Commission further stated in their
representations that when a counter
complaint was registered by the
accused against the Dalit victims, it
was filed obviously with the sole
DALIT RIGHTS
intention to counter blasé the complaint filed by the victims. As a result
of the counter cases, the real victims
of atrocities are being arrested and
subjected to criminal litigations. This
theory of 'counter complaints', it is
found, is hatched by police at the
instance of the perpetrators, to
mount pressure on Dalit victims to
compromise with the culprits and
withdraw their cases. Police invariably colludes with the perpetrators
of violence and render injustice to
real Dalit victims. CDR has traces
cases where this type of methodology is also adopted by the police
authorities in Rajasthan.
Role of State
Despite numerous government
orders for implementing the SC/ST
(PoA) Act, 1989 and Rules, 1995, setting up of SC/ST cells at different levels in the state, and implementation
of relief and rehabilitation measures
under the SC/ST Act & Rules, compensation and rehabilitation rights
continue to be denied where atrocities against Dalits take place. The
breach of duties by the state is committed in the following ways:
(1) Not conducting on-the-spot
enquiry on the site of atrocity immediately by senior district officials,
thereby evading duty to give relief
and compensation.
(2) Inordinate delay and total denial
in distribution of cash compensation
and other legally entitled monetary
relief provisions for heinous crimes
ensured under SC/ST Act.
(3) Not providing allowances,
including travel allowance relating to
trial and investigation, to witnesses
and victims, maintenance expenses
and daily allowance, medical expenses etc.
(4) The state of Rajasthan ignores
basic problems of Dalits in the name
of "law and order".
The state and district administration do not recognise caste-based discrimination and tension between
Dalits and non-Dalits resulting in
atrocities as social and human rights
violations and wherever Dalits have
resisted and emerged united, their
voice and efforts are suppressed.
Dalit rights activists are implicated in
false cases and hurdles are created
for Dalits only at the behest of dominant castes/groups duly supported
www.combatlaw.org
There is a due need
for strengthening the
enforcement of the
provisions of SC & ST
(PoA) Act, 1989 and
Rules, 1995 for effective
prosecution and speedy
justice in atrocity cases
in Rajasthan
by local political and powerful interests.
The Rajasthan government has
miserably failed to set up effective
state and district level monitoring
and vigilance committees provided
under the Rule 16 and 17 of the SC &
ST Rules, 1995 for the purpose of
monitoring the implementation of
the SC/ST Act in the state. These
statutory committees are entrusted
with tracking the states and prosecution of cases registered under the
Act, reviewing relief and compensation provided to victims and evaluating the role and performance of different officers and agencies responsible for implementation of the Act.
Since 1995 onwards till date, the state
government has constituted only two
state-level monitoring committees
but their meetings were never convened and they hardly functioned.
As far as the Constitution and functioning of district-level monitoring
and vigilance committees are concerned, it is revealed from the CDR
survey that they are virtually defunct
barring 2-3 districts out of 33 districts
in Rajasthan. Since, these committees
are not functioning properly, effec-
tively and have no visibility as such,
the state should be held accountable.
Perhaps, Rajasthan is one of the
most atrocity-prone states in India
and according to national crime
records bureau (NCRB) it stands second in the country in terms of violence against women and Dalits. The
various reports, statistics and media
reportage on violations of Dalit
rights are big indicators in this
respect. In spite of these glaring facts,
the state government has not waken
up from its slumber and is yet to
declare
the
"atrocity-prone
district/area" in the state. It appears
that the government deliberately
declined to enforce and implement
the special preventive and protective
measures as enumerated in the SC &
ST (PoA) Act, 1989 and Rules 1995 to
combat atrocities in the state. It is
high time that the exclusive special
courts should be set up in atrocityprone districts for trial of cases under
the Act and that these courts should
not take up any other cases.
Scanner on SPP
The survey conducted by CDR about
the role and performance of special
public prosecutors in special courts
has revealed that many SPP do not
cooperate with the Dalit victims, witnesses and often join hands with perpetrators or their lawyers to weaken
the case of the victim for obvious reasons and other consideration. In
number of cases, the SPP behaves
like a defence lawyer in and outside
the court instead of the lawyer of the
victim resulting in acquittal of majority of the accused. This problem
needs to be seriously reviewed by the
state government and some mechanism to oversee the performance of
the special public prosecutor must
be evolved.
Hence, there is a due need for
strengthening the enforcement of the
provisions of SC & ST (PoA) Act,
1989 and Rules, 1995 for effective
prosecution and speedy justice in
atrocity cases in Rajasthan. There is a
need to put a check and balance on
the obstacles in attaining right to
speedy trial and also to large number
of acquittals made by abuse of
this Act.
–The writer is an Advocate,
Centre for Dalit Rights, Jaipur
61
DALIT RIGHTS
Recommendations
of Justice Punnaiah
Commission
The safeguards ensured
by the Constitution of
India have become
merely "proclamation of
theory" in the backdrop
of non-implementation
of the laws meant for
protection and
development of Dalits.
Imran Ali highlights the
recommendations made
by Justice Punnaiah
Commission of Inquiry
and the amendments
proposed by the
National Commission
for SC/ST to eventually
root out the caste bias,
closely intertwined with
culture, religion, history
and contemporary
politics
62
"The incident of assault and abuses
is nothing but because [the victim]
belongs to SC and he is lower in the
eye of [the] upper caste person
accused. The offence is not only
against [the victim] but against
society and ultimately the nation."
–Sri N. Balayogi, special
sessions judge, Guntur
Case, Guntur (55/S/2003)
he
Scheduled
Castes/
Scheduled Tribes (Prevention
of Atrocities) Act was enacted
for the protection against cruelty and
torture inflicted on the SC/ST people
by non-SCs/STs on September 11,
1989. The Constitution of India abolishes the age-old phenomenon of
"untouchability" and ensures numerous safeguards for the betterment
and development of Dalits and
tribals.
But articles become merely
"proclamation of theory" like many
such others that need to be made
operational. Nearly six years
after the Constitution enactment
Untouchability (Offences) Act, 1955
came into force with a superficial
objective to remove humiliation and
multifaceted harassments meted to
the Dalits, the lacunae and loopholes
drove the Indian government to project a major revamp of this legal
instrument. In 1976, it refurbished as
Protection of Civil Rights Act. In
spite of various measures adopted to
improve appalling socio-economic
conditions of the SCs and STs they
have remained helpless. The Dalits
have been subjected to various
offences, indignities and humiliations and harassments. And when
they assert their rights and oppose
the practice of untouchability against
them the vested interests try to browbeat them down and bully them.
T
It was felt that the normal provisions of the existing laws like the
PCR Act and the Indian Penal Code
have been found inadequate to check
the atrocities. Despite all the previous legislations, gross indignities
and offences in different dimensions
committed against the scheduled
castes and tribes had not ebbed.
Taking note of the dismal situation
and condition of the SCs Parliament
passed the Scheduled Castes and
Scheduled Tribes (Prevention of
Atrocities) Act in 1989. The statement
of objects and reasons appended to
the Bill reads "despite various measures to improve the socio-economic
conditions of SCs & STs, they remain
vulnerable. They are denied a number of civil rights; are subjected to
various offences, indignities, humiliations and harassment. They have, in
several brutal incidents, been
deprived of their life and property.
Serious atrocities are committed
against them for various historical,
social and economic reasons."
The preamble of the Act states
"prevent the commission of offences
of atrocities against the members of
scheduled castes and tribes, to provide for special courts for the trial of
such offences and for the relief and
rehabilitation of the victims of such
offences and for matters connected
therewith or incidental thereto." So
the objectives of the SC/ST Act very
DALIT RIGHTS
clearly emphasise the intention of the
government to deliver justice to these
communities through affirmative
action so as to enable them to live in
society with dignity and self-esteem
and without fear or violence or suppression from the dominant castes.
However, the experiences of victims and witnesses, activists and
organisations narrate a different
story of failed or delayed justice
delivery system and clearly shows
that the implementation of the Act
still leaves much to be desired.
Though the Act has made a petite
impact in curbing atrocities against
SCs/STs through deterrent punishment, remedial measures to be taken
by the authorities and also through
rare provisions placing mandatory
on the state government the responsibility to take steps for the effective
implementation of the Act and
spelling out illustratively some of the
possible measures, its implementation yet suffers from several deficiencies. The national commission for
scheduled castes and tribes, NHRC,
and Justice Punnaiah Commission
critically examined the deficiencies
in the Act and suggested various
amendments to it.
National commission for SC/ST
proposed an amendment to add
'refused to pay wages or contract
wages for the labour' in the 3(1)(vi)
clause which presently says "compels
www.combatlaw.org
or entices a member of SC or ST to do
'beggar' or other similar forms of
forced or bonded labour other than
any compulsory service for public
purposes imposed by the government". Similarly, the deletion of
entire section 3 (l)(xii) for being in a
position to dominate the will of a
woman belonging to SC or ST and
uses that position to exploit her sexually to which she would not have
otherwise agreed and renumbering
of sections 3(l)(xiii), (xiv) and (xv) as
sections 3(l)(xii), 3(l)(xiii), and
3(l)(xiv) has been proposed. The
incorporation of new sections like
3(l)(xv) (xvi) and 3(2)(i) and (iii) dealing with blackmails of SC/ST persons, boycott or support of the boycott of SC/ST people, being in a position to dominate the will of a woman
belonging to SC or ST and uses that
position to exploit her sexually and
to which she would not otherwise
have agreed, shall be punishable
with rigorous imprisonment for a
term which shall not be less than 10
years but which may be for life and
shall also be liable to fine and penalty respectively.
Section 4 of the Act says,
"Whoever, being a public servant but
not being a member of SC or ST community, willfully neglects his duties
required to be performed by him
under this Act, shall be punished for
a term which shall not be less than
six months but which may extend to
one year". The national commission
for SC/ST has proposed to delete the
words 'but not being a member of a
SC or ST' and to the punishment part
add 'six months but which may
extend to two years'. It has also been
proposed that section 4 (1) shall also
incorporate, "abettors of offences are
equally punishable, as provided
under this Act."
Furthermore section 14 which is
for the purpose of providing speedy
trial states "the state government
shall with the concurrence of the
chief justice of the high court by notification in the official Gazette, specify for each district a court of session
to be a special court to try the
offences under this Act. Its been proposed to replace the word 'specify'
with the word 'create' and the words
'court of session to be a special court'
with the words 'special court of the
level of sessions court". There has
also been a proposal to add section
24 in the Act stating that all offences
under this Act are cognizable and
subject to summary trial.
The national commission for SC
and ST has also proposed amendments in the SC & ST (Prevention of
Atrocities Rules), 1995 beginning
from amending rule 7(2) which says
"the investigating officer so appointed under sub-rule (1) shall complete
the investigation on top priority
within thirty days and submit a
report to the superintendent of police
who in turn will immediately forward the report to the director general of police of the state government"
by adding 'and trials be completed
within three months' at the end of
this section. The commission has also
asked to add a new section - rule 7(3)
enabling the trial to take place in the
special court itself as it is observed
that in some of the states, specified
courts are the courts of sessions and
therefore the trial of offences takes
place through committal proceedings in lower courts which is detrimental for speedy trials. The commission also proposed to renumber
the old section 7(3) as section 7(4).
Recommendations
The SC/ST (PoA) Act, 1989
(1) In section 3(X), delete the words
"with intent to humiliate" since the
expression intentionally insults or
63
DALIT RIGHTS
intimidates contain the necessary
"mens rea". The amended clause (X)
of section 3 may be read as follows:
"Intentionally insults or intimidates a member of scheduled castes
or scheduled tribe in any place within public view".
(2) In section 3(XI), remove the
expression "With intent to dishonour
or outrage her modesty". An assault
or use of force on any woman or man
itself is an offence under section 323
and 352 of the IPC, the expression
"with the intent to dishonour or outrage her modesty" is unnecessary.
The amended clause (XI) of the same
section should be read as below:
"Assaults or uses force to any
woman belonging to scheduled caste
or scheduled tribe".
(3) The Punniah Commission also
recommended to delete the expression "intending to cause or knowing
it to be likely that he will thereby
cause damage" in section 3(2)(iii) of
the PoA Act as this expression is
superfluous since "whoever commits
mischief by fire or any explosive substance, he intends to cause damage to
any property or he knows it to be
likely that he will thereby cause damage to any property". The amended
clause should be read as: "Whoever
commits mischief by fire or any
explosive substance to any property
belonging to a member of a scheduled caste or scheduled tribe, shall be
punishable with..."
(4) Amend section 3(2) to include
"any form or disrespect or disfigure
or defilement or damage to the statues of Babasaheb Dr BR Ambedkar
as insulting the SC community as
well as an insult to the nation and be
punishable with rigorous imprisonment for a term of three years."
SC/ST (POA) Rules, 1995
Some states viz. Andhra Pradesh,
Madhya Pradesh, Maharashtra,
Orissa and Uttar Pradesh have raised
an issue to amend rule 7(1) of the SCs
& STs (Prevention of Atrocities)
Rules, 1995 so as to provide for an
appointment of an inspector of police
instead of deputy superintendent of
police as the investigating officer in
the cases of atrocities against SCs and
STs. Such a view has been largely
held on account of non-availability of
State governments
of Madhya Pradesh
and Maharashtra
have
suggested
that relief can be
given to women
victims of atrocity
on account of
outraging their modesty, without medical
examination, while the government of Andhra
Pradesh has suggested for amending the SCs &
STs (Prevention of Atrocities) Rules, 1995
regarding payment of relief to the victims
64
as much number of DSPs as required
to investigate such cases. This issue
was raised earlier also and the ministry of home affairs opined in
August, 1998 that framers of law
have provided for investigating officer of higher rank in the case of atrocities against SCs/STs and this might
have been done, keeping in view the
sensitivity of cases to be investigated
by an officer, who has higher sense of
responsibility, objectivity, more
responsiveness, sense of ability and
justice to perceive the implication of
the case. The ministry accordingly
opposed the proposal to provide for
investigation by an officer of the rank
of inspector of police.
The government of Karnataka has
suggested that the rate and mode of
payment of compensation differ
from case to case. For instance, in
case of death, only 75 percent of the
compensation is paid after postmortem and the remaining 25 percent is paid after conviction by the
lower court. In some other cases, the
ratio of compensation paid initially
varies from 25 percent to 50 percent
when the chargesheet is sent to the
court and the balance is paid after the
conclusion of the trial or conviction
in the lower court. Since the disposal
of atrocity cases admitted in the court
takes years together resulting in
denial of full benefit of compensation
to the SC/ST victims of atrocities. As
such suitable amendment to the
Rules, 1995 regarding mode of payment of compensation to victims of
atrocity be considered. State governments of Madhya Pradesh and
Maharashtra have suggested that
relief can be given to women victims
of atrocity on account of outraging
their modesty, without medical
examination, while the government
of Andhra Pradesh has suggested for
amending the SCs & STs (Prevention
of Atrocities) Rules, 1995 regarding
payment of relief to the victims. It
pointed out that the central government might amend the annexure of
the rules in such a way that the district magistrate has discretion to
sanction immediate cash relief to the
victims without insisting for filing
of chargesheet.
–The writer is a lawyer with the
Dalit Rights & anti-Communalism
Initiative, HRLN
DALIT RIGHTS
Two decades of the Act
An experiential review
Dignity of life and equal opportunities to Dalits are distant
dreams even after 20 years of enactment of SC/ST (PoA)
Act. That is why there is an urgent need to review the
legislation to ensure a prompt and fair probe into crimes
against Dalits and render speedy justice to the victims of
caste persecution, notes V Nandagopal
he people of India promised,
"We the people of India
solemnly resolve … to secure to
all its citizens: JUSTICE, social, economic and political; LIBERTY of
thought, expression, belief, faith and
worship; EQUALITY of status and of
opportunity", through the preamble
of the Constitution. The founding
fathers of the Constitution, realising
the ground situation, engrafted this
promise in Articles 15, 16, 17, 18, 21,
23, 24, 27, 30, 40 to 47, 335, 361 and
362 etc so that the Dalits and Adivasis
could enjoy equal opportunity, equal
status in the society and equal dignity of their identity. The idea was to
bring the marginalised on parity in
the mainstream society and to do
social, economic and political justice
to them.
In the light of ever increasing
atrocities against the scheduled
castes and scheduled tribes -- less
than one percent conviction rate
under SC/ST (PoA) Act, growing tendency of disposing the atrocity-related cases as false cases by police and
concerned officials, and rising trend
of filing counter cases against the victims and witnesses -- reviewing the
twenty years-old SC/ST (PoA) Act,
1989 has become a necessity especially in reference to the preamble of this
Act which says, "An Act to prevent
the commission of offences of atrocities against the members of scheduled castes and tribes, to provide for
special courts for the trial of such
offences and for the relief and rehabilitation of the victims of such
offences and for matters connected
therewith or incidental thereto".
T
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Hard realities
1. Increasing atrocities against SC/STs
and at the same time the tendency of
avoiding registration of cases by police
under the Act is equally growing. "….
Even in respect to heinous crimes the
police machinery in many states has
been deliberately avoiding the SC/ST
(PoA) Act, 1989". "…. Police resort to
various machinations to discourage
SC/STs from registering cases -- to
dilute the seriousness of the violence,
to shield the accused persons from
arrest and prosecution and, in some
cases, the police themselves inflict
violence."(NHRC report, 2002)
2. Victims getting frustrated and forced,
either to withdraw the case or to compromise with the perpetrators. Reasons
behind this are:
(i) Police deliberately not registering the
cases under appropriate sections: Under
In a public interest litigation filed
by Sakshi human right watch,
Andhra Pradesh, police admitted
that:
■ Investigation of 1,873 cases
delayed due to delay in obtaining
caste certificates;
■ Nearly 3,281 cases were not
chargesheeted due to delay in getting approval, legal opinion and
superior's order;
■ 1,464 cases because of 'more witnesses' in the case;
■ 2,934 cases due to delay in the
collection of documents & evidence;
■ 1,212 cases due to delay in receipt
of wound certificates, medical certificates & postmortem report.
the SC/ST (PoA) Act, section 3(1)(x)
was the only common section that
was charged in every atrocity.
Number of judgements reveals that
the words 'intentionally insult' or
'intimidates with intent to humiliate'
and 'in any place within the public
view' mentioned under this section
gives ample opportunity to the
accused to escape punishment. In
other words, hardly gives any scope
to the victim to prove his/her case.
(ii) Enormous delay in filing the
chargesheet: Rule 7(2) of the SC/ST
(PoA) Rules, 1995 says "the investigating officer so appointed shall
complete the investigation on top priority within 30 days and submit the
report to the superintendent of police
who in turn will immediately forward the report to the director general of police of the state government".
This is the rule to be applied in every
case under the SC/ST (PoA) Act but
the real picture is quite grim. There
are hardly any cases where investigation was completed within the stipulated time. None seems to realise the
importance of this rule in view of the
vulnerable conditions of the scheduled castes and scheduled tribes living under the caste dominated rural
village structure. The data shows that
delay was extended from days to
months and months to years and for
the concerned authorities this is
nowhere figuring in even in their
normal priority forget the question of
"top priority".
(iii) Accused are invariably released
either on immediate bail or through a
petition in the high court for grant of stay
of all further proceedings including arrest
65
DALIT RIGHTS
and to quash the FIR: Because of section 18 of the SC/ST (PoA) Act very
clearly stating, "Nothing in section
438 of the CrPC shall apply in relation to any case involving the arrest
of any person on an accusation of
having committed an offence under
this Act", the accused in a number of
cases under this Act have found a
blessing in disguise by using section
482 of the CrPC through filing a petition in the high court, asking grant of
stay of all further proceedings including arrest and to quash the FIR. None
of the public prosecutors seem to
have opposed this type of a petition,
which is against section 18 and to its
true spirit.
Despite the clear expression
under this section many high courts
are giving relief to the accused under
section 482 of CrPC. The only fear of
getting arrested without any anticipatory bail which made the culprit
think twice before committing a
crime is slowly taken away with this
process.
(iv) Victims are put to more trouble and
embarrassment because of false and
counter cases filed against them by the
perpetrators: As per the rule 7 of
SC/ST (PoA) Rules, an offence committed under the Act shall be investigated by a police officer not below
the rank of deputy superintendent of
police whereas a counter case filed
by a non scheduled caste person
against the victim can be investigated
by a station house officer. Taking this
as an advantage to demoralise the
victims' confidence levels culprits
influence police to take quick action
against victims while the original
case remained ever pending for
investigation.
3. Discouraging trends in criminal justice administration system:
Section 14 of the Act says "for the
purpose of providing for speedy
trial, the state government shall …
specify for each district a court of session to be a special court to try
offences under this Act". There are
number of districts where the special
courts are yet to be established and
those areas where such courts are
functioning they have eventually
defeated the very purpose of the
SC/ST (PoA) Act because the designated courts were not given the
power to directly take cognisance of
cases of atrocities against SCs and
66
STs. In the present scenario, all cases
have to go through a committal process by a magistrate before going to
the special court. This has not only
overburdened regular court system
but also slowed down the efficacy
and pace of special courts in disposing off the atrocity cases. Another
aspect to be noted is that the special
courts are not functioning as ones
dealing exclusively with the SC/ST
(PoA) Act cases but all other cases
too, leading to an enormous delay in
delivering justice.
Notably, the Supreme Court's
judgement in Gangula Ashoka and
Ors vs state of Andhra Pradesh
(2000(2) SCC 504) has made it compulsory for all atrocity cases to go
through the committal process to be
placed before the special court, thus,
placing unnecessary delays in trial of
atrocity cases. On the contrary, in S
Madava Reddy vs state of Andhra
Pradesh (1996(1) ALT (Crl.) 452(AP),
the Andhra High Court held that as
the special courts are courts of original jurisdiction, they have the power
to take cognizance of atrocity offence
and try cases without the case first
going through a committal process
with a magistrate
Under the SC/ST (PoA) Act, there
are several offences wherein the
words like "intent", "intention" or "on
the ground", "public view" and "public place" specified in sections 3(1)(ii),
3(1)(x), 3(1)(xi), 3(2)(i), 3(2)(ii), 3(2)(iii),
3(2)(iv) and 3(2)(v) give ample space
to the accused to escape from the law.
The enforcement officials also resort
to various schemes to support the
accused in different ways.
Even the judiciary is not exempted from this kind of appreciation of
the above-mentioned words. The
analysis of the judgements pronounced by the special courts indicates that 39 percent of the cases were
disposed off on the ground that "the
accused did not abuse by caste name"
while committing the offences
including rape. Eleven percent of the
cases were cleared on the ground
that the offences were "not committed on the ground of SC/ST". It shows
in more than 50 percent cases that the
accused escape from the law based
on the appreciations of the courts on
the words "intent", "intention", and
"on the ground of". Similar trend can
also be observed in the judgements
pronounced by the high courts.
In Appa Bali Ingley case, the
Supreme Court declared that proof
of motive to commit atrocities on
Dalits is not necessary. The very
mindset and caste-based discrimination is the ground for inflicting torture on the downtrodden.
Failed prosecution
The PoA Act under section 15 envisages the appointment of a public
prosecutor and in some cases a special public prosecutor as well. But
one finds a serious flaw in the implementation of the Act with almost
negligible appointment of the SPP to
conduct trials. The public prosecutors are usually busy in conducting
trials of IPC offences and they seldom give priority to the trial of the
case filed under the SC/ST (PoA) Act
and PCR Act.
Victims have been facing a lot of
delay or denial of getting compensation, relief and rehabilitation measures. The raising awareness among
the scheduled castes and scheduled
Tribes to question the root causes of
the atrocities on one side and the
intolerant behaviour of the dominant
rural upper caste social structure on
the other is increasing the need for
the effective implementation of the
SC/ST (PoA) Act and its Rules in real
spirit and strength. Hence, there is a
need to review and reflect on the
practical achievements and failures
of this Act in last twenty years. And
this exercise should take place at
every level across the country to
strengthen the only Act which provides the reparation and compensation to the victims in addition to punishing the accused and be made more
user friendly.
–The writer is director,
Sakshi Human Rights Watch
DALIT RIGHTS
Across India, the SC/ST
(PoA) Act is operating
more in defiance than in
compliance. The bias of the
judiciary, the apathy of the
public prosecutor, the
vulnerability of the victim
and the corruption in the
entire justice delivery
mechanism at every
stage -- the odds are too
many. A reality check
from Gujarat
Dalit laws: Mere paper tigers?
espite the legislative will
demonstrated by the enactment of the Scheduled Caste
and Scheduled Tribe (Prevention of
Atrocities) Act, 1989, the situation of
the members of the SC community
has hardly changed for any good. As
the legendary human rights activist
and former Supreme Court judge
Justice VK Krishna Iyer puts it, all
such 'half hearted legislation has
proved to be impotent and ineffectual in practice'.
More often than not, rules and
procedures are used not to implement the Act but to make sure that
the accused go scot free. Non-investigation of the atrocity-related cases by
a police officer in the rank of the
deputy superintendent of police
leading to acquittal is one such example. In Gujarat, it is not uncommon
for a judge to ask "ama samadhan
thay evu nathi?" (Is it not possible to
arrive at a compromise?) This comes
from the judge knowing well that the
offences under the SC/ST Act are
non-compoundable.
The issue has two dimensions to
it. First is the crumbling of the total
justice delivery mechanism. Low
rates of conviction are not peculiar to
Dalit rights cases alone. It is an overall phenomenon. Adjournments lead-
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ing to delay in justice are an all-prevailing phenomena. The second, of
course, is the miserable situation of
the SC and ST community which
makes the impact on them several
times more.
The question that we need to ask
ourselves as Dalit rights activists is,
has the time not come for joining
hands with other people who are
working on the issue of the judicial
reforms or police reforms?
The severe earthquake that hit
Gujarat in 2001 and the subsequent
relief and rehabilitation programme
revealed to the outside world the
deep-seated caste bias in the Gujarati
community, apart from the much
talked about bias against the minority communities. There were reports
that in some places the relief and
rehabilitation work bypassed both
the Dalits and the Muslims.
Discrimination against the SCs in
Gujarat occurs routinely -- in housing, in education, and even in death.
Use & abuse of law
SC/ST (POA) Act, 1989
Section 3 of the SC/ST Act establishes
different offences and punishments
that should be carried out for crimes
committed against members of
Scheduled Castes or Scheduled
Tribes. However, it is quite visible
that police in Gujarat lodge the
majority of complaints (FIR) only
under section 3(1)(10) of the SC/ST
Act even though the form of the
crime in each case is different.
Section 4 of the Act clearly establishes the punishment for government servants who neglect or willfully neglect his/her duty. However, it
has been noted that the state ministry
of home has taken such provisions in
a very casual manner. Therefore, they
have failed to ensure the proper
implementation of the concerned section of the SC/ST Act.
According to section 7 of the Act,
after perpetrators of the offences are
successfully convicted for their
actions against the backward classes,
their moveable and non-moveable
assets are to be seized by the special
court (special court is defined in section 14 of the SC/ST Act,1989).
However, not a single case has been
found over the last decade in which
the assets of the perpetrators have
been seized by the special courts in
Gujarat.
Section 10 of the Act establishes
"the provision of parole". However,
this provision has hardly been
utilised by any law enforcement
agency in Gujarat, resulting in high
67
DALIT RIGHTS
rates of violence towards the scheduled castes within the state. Section
14 calls for the formation of special
courts to adjudicate cases of violations against communities of scheduled castes and scheduled tribes but
only 10 out of 26 districts in Gujarat
have established such courts.
Furthermore, the special courts that
have been built are in poor state with
insufficient water and electricity supply and other such infrastructural
deficiencies. It has also been reported
that in some special courts, there are
no spaces for the victims to sit.
The provisions under sub-section
4(2) of the SC/ST Act, 1989 require the
appraisal or evaluation of the special
public prosecutor. (As per section 15
of the Act, the prosecutor is specially
appointed to adjudicate the legal proceedings.) It has been found that only
the Ahmedabad district collector has
exercised this appraisal of the SPP,
which occurred as a result of several
reminders given to him. Such gaps
show that the special public prosecutor has not been keen to perform
his duty to ensure the rights of
scheduled castes and scheduled
tribes victims.
Sub-section 16 establishes a "collective fine". However, to date this
clause has not been put to use to
penalise any opponents or accused
members of the upper-castes. Such
flaws in the state machinery result in
an increased number of single and
collective acts of atrocity against the
communities of scheduled castes and
scheduled tribes.
SC/ST (POA) Rules, 1995
On March 31, 2008, the central government amended the SC/ST (PoA)
Rules, 1995. However, the state government of Gujarat has not paid any
heed to or enforced these rules and
has even gone as far as to violate the
new amendments. The following
instances reveal more about the grim
situation in the state:
Rule 3: The state ministry of home
has announced that 11 out of the 26
districts in Gujarat are atrocity-prone
areas. In a letter from the director
general of police to the state ministry
of home, dated November 25, 2005
(G-2/1997/Atrocity Prone Dist), the
DGP has requested to announce
majority of the districts as atrocityprone areas. The ministry to date has
68
More often than
not, rules and
procedures are used
not to implement the
Act but to make sure
that the accused
go scot free
not responded to the letter, which
implies gross negligence on the part
of the state government towards
securing the rights of scheduled
castes in Gujarat.
Rule 4: The law department is supposed to create a panel of senior
lawyers to look after the penal proceedings as per rule 4(1) of the SC/ST
Atrocity Rules, 1995. However, there
is no such functioning committee in
any district in Gujarat.
Rule 5: Regarding information
sought on in-charge police officials, it
is worth mentioning that none of the
offices of the district superintendent
of police are willing to provide information on complaints registered,
cases filed, trials etc. Even after registering a complaint at the district
headquarters, no action was taken by
the police officials to respond to the
complaint. In Gujarat, the implementation of sub-rule 3 is completely
missing.
Rule 6: As per rules 1 to 5, each of the
district-level designated officers,
such as the district collector, district
superintendent of police (DSP), subdivisional magistrate, and executive
magistrate, are required to visit the
places where atrocities against scheduled castes or scheduled tribes have
taken place. These officers are then
required to send a report to the state
government about the atrocity incident. However, none of these highranking officials have ever been
found taking such visits. In the end,
many cases result in judicial delay
and the accused justifying his/her
malfeasance. If the high-ranking officials actually undertake these visits,
it would help to ensure a pure and
prompt investigation process and
would even increase the self-confidence of the victims in the probe.
Rule 7: From 2001 to 2006, 5,593 cases
were registered as atrocity offences,
of which 5,370 (96 percent) were
investigated by an officer lower in
rank than the DSP. As per Rule 7(2),
the chargesheet for all filed cases
should be completed and submitted
within 30 days from the day of occurrence of the crime. However, out of
5,344 total cases, only 3,087 met the
30-day deadline. The remaining 2,259
cases were not investigated and did
not have a filed chargesheet within
30 days.
Rule 8: As per the sub-rule 8(3), there
should be an allied police force that
protects the scheduled castes and
scheduled tribes in sensitive territories. In this regard, the office of the
DGP of Gujarat has issued a demand
for an approval of appointment of
police staff to protect members of the
Dalit community but the state government has taken no decision on
this as yet.
As per rule 5 and sub-rule 3, it is
mandatory to register all the verbal
and written petitions and complaints,
and to maintain separate notebooks
for them. Furthermore, if this procedure is not followed, then rule 5 outlines appropriate action and steps
that the district superintendent of
police should take to ensure officials
perform in accordance with law.
Sub-Rule 8(9): As of now, 85 complaints of willful negligence of a state
government servant have been forwarded by the additional DGP
(SC/ST cell) to the state home department for punitive action against the
erring officials. However, none of the
complaints have been taken into serious consideration by the department.
Rule 9: The post of the nodal officer
should have a full-time person rather
than a temporary allocation as additional charge to some higher-level
officer.
–This report is based on the
collective efforts of Centre for Social
Justice and Navsarjan Trust, Gujarat
PRISONERS' ABUSE
Condemned Twice
The vulnerabilities that
women generally face in
society are also reflected
in the correctional
institutions. Various forms
of abuse by prison staff
and other inmates have
become a common feature
in the lives of those
incarcerated women
whose basic human rights
stand violated while they
serve a sentence. Prison
health systems are rarely
equipped to deal with
their needs, leaving them
in lurch to survive in the
most deplorable and
hostile conditions.
Leni Chaudhuri and
Reena Mary George
report on the multiple
challenges faced by
women prisoners
www.combatlaw.org
ealth
status
of
the
marginalised has never been
a topic of mainstream discourse, particularly about those who
are criminals in the eyes of law.
Women in conflict with law suffer
from the double jeopardy, firstly for
being prisoners and secondly for
being women. Considering the significance and seriousness of the issue
a study was conducted with women
inmates in central and district prisons in Maharashtra. The objectives of
the study were to understand the
type and nature of morbidities that
prevailed among women prisoners,
the availability of medical assistance
in the context of those morbidities,
and access to other social determinants of health such as food, water
and sanitation. The study went on to
further probe whether the individual
prisons comply with the physical
standards mandated by the Prison
Manual.1
H
Key findings
From nearly 400 women prisoners
who were selected from the eight
prisons in Maharashtra, around two
percent were less than 18 years of
age. Women within the age group of
18 to 59 years comprised of the
largest majority (85.4 percent).
Around 13 percent of the respondents were above 60 years of age. In
the age category of less than 18 years,
60 percent of the women were married. In the age group of 18 to 59
years, 78 percent of women were
married. And among these, 12 percent were widowed, 0.8 percent were
divorced, 2.1 percent were separated,
1.5 percent were deserted.
Among a total of 390 women
interviewed, astoundingly high proportion (74.1 percent) reported that
they were suffering from some illness or the other. The responses
ranged from grave to minor health
problems. Out of those who reported
ill on the day of the survey, an
abysmally low proportion (10 percent) was examined by the doctor,
almost similar (10.8 percent) number
was not examined by the doctor and
only provided with first aid, about 28
percent of the women were given
medicines from the dispensary by
someone other than a doctor. Only
3.3 percent of the respondents who
were ill on the day of the survey had
the opportunity to be treated by the
doctor and were also given
medicines. A substantial proportion
(27.7 percent) of those who were sick
reported that they did not seek any
treatment.
The reasons for not seeking treatment provided by the ailing women
detainees ranged from — (i) The doctor hesitated to see them; (ii) No
relief even after taking medicines;
(iii) Irregular visits by the doctor; and
(iv) The warden and other prison
staff get angry if the inmates complain about ill health.
More than half (61.5 percent) of
the women responded that there has
been no change in their condition
even after taking treatment and only
25 percent claimed to be feeling better. Women had serious reservations
about the medicines prescribed to
them. Their major complaint was
that the medicines given by the dispensary gave no recovery results on
them and also that the same
medicine (a white tablet) is given to
them for all kinds of illness. In fact,
69
PRISONERS' ABUSE
this was one of the reasons why
women were reluctant in seeking
treatment from the medical staff at
the prison.
A substantially high proportion
of women prisoners amounting to
73.1 percent said that they have been
ill for the last 15 days and most of
them reported long term illnesses
such as anxiety, tuberculosis, allergy,
arthritis, abdominal pain, dental
problems, growth in the uterus,
urine infection, diabetes etc. Further
enquiries about health conditions of
the women revealed a large proportion (60 percent) had no access to
consistent treatment in the cells.
The other sentiment represented
was that there is a general lack of
sympathy towards ailing prisoners.
Prison staff at all levels creates some
kind of barrier for prisoners whenever they try to report their illness or
seek healthcare. The constable’s
responses range from simple denial
to violent abuse. This acts as the first
level of screening and only those
who can circumvent this pressure
reach to the doctor.
The emerging issue was continuous access to medicines. Most of the
respondents with long-term illnesses
like diabetes, blood pressure, tuberculosis etc, mentioned that they had
problems in routine monitoring of
their illness and also consistent
access to medicines. Lack of insulin
was a phenomenon uniformly
observed in all prisons.
Reproductive health
The probe on reproductive health ailments included problems during
menstruation, white discharge and
unavailability of antenatal care
(ANC) and postnatal care (PNC) services. Around 23 percent of the
women interviewed during the survey said that they had problems during menstruation. Fifteen percent of
the prisoners suffered from severe
pain during menstruation while 28
percent reported to be having scanty
bleeding. Around 39 percent said that
they had abdominal and back pain
during menstruation and 13 percent
reported that they had heavy bleeding. Most of the women complained
that ever since they were lodged in
the prison their regular menstruation
cycle has become erratic. Around 27.7
percent of the women reported that
70
they had burning sensation while
passing urine, 23.1 percent said that
they had excessive white discharge,
21 percent claimed that they had itching in genital region, 33.3 percent said
that they had pain in the lower
abdomen, and finally 7.2 percent said
that they had prolapsed uterus.
During the course of the study it
was seen that only 11 women were
pregnant at the time of admission
into the prison and a majority of
them reported that they were not
aware of any proper ANC registration to be done in their case. Since
most of the respondents were not
clear about the entitlements which
were part of the ANC registration2,
all the 11 women were asked
whether they received any of such
privileges as part of ANC care. Only
seven women responded that they
received iron and folic acid tablets.
The Maharashtra Prison Manual,
1979 lays down a fairly detailed provision for diet of pregnant women
prisoners. It is stated that one portion
of the diet of a pregnant woman shall
comprise of cereals. Non-vegetarians
shall be served meat, eggs, fish and
vegetarians shall be served milk and
other milk products. However, none
of the pregnant women in the prison
said that their diet comprised of any
cereal, only three claimed that they
were given milk, none of them
reported to be getting meat or fish
and only one woman said that she
was served eggs.
As per the prison rules in India,
no child can have “the prison”
recorded as his or her birthplace.3 So
this creates enormous pressure on
the otherwise insensitive prison system to be particular about the place
of delivery. The prison administration stated that even if a delivery
takes place in the prison also, they
record the name of the area in which
the prison is located and not
the prison itself as the child’s place
of birth.
It was observed that education,
recreation and nutritional requirements of the children of the women
inmates were hardly met inside the
prison walls. Though staying with
the mother provided them with emotional security, nonetheless it also
hampered their growth in many
ways. The mothers also said that
their children are acquiring negative
qualities like abusive and violent
behaviour from other prisoners.
Some of the mothers mentioned that
their children are often victims of
physical and emotional abuse by fellow prisoners or prison staff and the
fact that they could not save their
children from this caused a lot of
emotional trauma to them. Another
fear that gripped them was the fact
that their children may not be able to
cope and adjust with the outside
world ones they are released from
the prison.
The hostile environment in the
prisons was coupled with minimum
dietary provisions. Majority of the
prisons (6 out of 8) had no special
dietary provision for children. None
of the children were given extra milk,
daliya, khichdi etc for nourishment.
They received meals two times in a
day and some breakfast in the morning. There was also no provision for
snacks, fruits or milk and milk products for the young ones. Mothers had
to either spend their meagre earnings
in buying snacks from the prison
canteen or manage with whatever
was available. It was observed that
most of the children survived on glucose biscuits.
In terms of education, only those
prisons which had a substantial
number of children had balwadi
facilities. Since this was not a priority
for the prison administration the balwadis were definitely not run in the
most efficient ways. Dedicated space,
teachers and teaching aid everything
seemed to be inadequate as per the
PRISONERS' ABUSE
requirement. Rather than performing
his/her duty of teaching the children,
the balwadi teacher was found to be
involved in prison administration
work like payment of wages, record
maintenance of the same, maintaining stock details of medicine etc.
Healthcare needs of children were
also not a priority. Among all kinds
of treatment provided, only administration of polio drops were regularly
carried out. There was no provision
of routine health check up and the
general practitioner treated the chil-
dren as and when required. Prisons
with large number of children had a
paediatrician visiting them on special days.
Crumbling infrastructure
Studies conducted in both Indian
and Western context explicitly bring
out the fact that prisoners live in
inhuman conditions, the prison barracks are crammed with inmates
than their official capacity resulting
in over crowdedness and undue
pressure on the otherwise miserable
infrastructure. In India the authorised capacity of the prisons is
2,77,304 while the inmate population
as on December 31, 2007 was
3,76,396.4
The prison manual mandates that
each prisoner shall be provided with
one mug, one plate and one bowl as
utensils for personal use by the jail
authorities at the time of admission.
During the survey all the respondents were asked whether they have
been given these utensils or not and
www.combatlaw.org
the responses were hard to believe.
The inmates are supposed to use the
mugs to collect milk and dal (lentils)
served in the prison. The other use of
the same mug is in the bathroom and
toilet. Around six percent of the
respondents mentioned that they
were not provided with mugs at all.
When they were asked whether they
have separate containers for use in
baths and toilets, surprisingly, 20
percent of them said that they did
not have a separate container. On
more digging, the women inmates
revealed they are asked to either use
the same mug in toilets with which
they collect dal and milk or the bottles used for collecting drinking
water. In fact, some of the respondents said that at times if their bath
time clashes with that of bhatta (food
distribution), then they had to actually make a crucial decision whether to
have bath or collect food. And most
of the time they had to use the mug
for collecting food. Some of them cut
the plastic bottle into two halves to
use the lower half of the bottle to
carry water to the toilet. Hardly anywhere the bathrooms and toilets had
mugs and buckets kept there. Many
women said that they look forward
to their court hearing day for more
than one reason, one of them being
the opportunity to get a mineral
water bottle, which they can use in
the prison.
Poor sanitation facilities
The Maharashtra Prisons (Prison
Buildings
and
Sanitary
Arrangements) Rules, 1964, section
(I)(35) states, “drinking water must
be ‘pure and wholesome’ and safe for
human consumption and shall be
supplied in sleeping wards and all
other places of detention. Drinking
water in prisons is stored either in
tanks, plastic bottles, or earthen pots.
In most of the prisons, there is a common tap. Almost 60 percent of
women used this common tap to
store water for drinking purposes.
However, there was another 32.8 percent who filled their drinking water
from taps inside the toilets.
Nearly 34 percent of the women
interviewed during the survey said
that they did not have enough water
for bathing and cleaning. Due to
security reasons prisons could not
have fully closed bathrooms. So they
were mandated to have bathrooms
with the door covering half the wall,
but around 54 percent of the respondents mentioned that they had no
facilities for a closed bathroom (even
with partially covered rooms) and
had to have their baths in open either
under common taps or in a tank constructed for the purposes of storing
water. The women had to carry out
all their washing and cleaning activities inside those tanks. Interestingly,
lack of bathing facilities were one of
the major causes of fights among the
prisoners.
According to the Maharashtra
prison manual, “one latrine accommodation with sufficiently high partition for privacy and water for cleaning shall be provided for each group
of six prisoners, and shall be cleaned
at least twice a day.”5 Out of eight
prisons, only one used all the toilets
that were constructed for the women,
however, the remaining seven prisons just used two toilets irrespective
of the high strength of women and
rest of the toilets were either locked
or used as store rooms. Except for
one prison, none of the others had
taps inside the toilet. The women had
to carry water or use their drinking
vessel to use in the toilets. To add to
their woes, the women prisoners
were not provided with any soap or
detergent powder for their daily
washing and, if so at times, the
amount was very insufficient.
Denial of personal hygiene supplies to women in prisons is another
disturbing issue. Around 20 percent of
them reported that they were not given
sanitary napkins. The others who were
given said that the napkins couldn’t be
used as they were of very poor quality
and better left unused. Thus, the
inmates are left with no option but to
use their own cotton saris!
As per the Maharashtra prison
manual, every convicted women
prisoner should be provided with
two saris, two petticoats and a towel.
However, it was found that 12.8 percent did not have two saris, 33.6 did
not have two petticoats and 51 percent did not have any towel. Only
66.4 percent of the women could
wash their clothes daily and the rest
could not do so because of lack of an
extra pair to change. Around 45.4
percent of the convicts were not provided with undergarments. Women
71
PRISONERS' ABUSE
Though food and nutrition-related issues are crucial
to the well being of any society, in the prison set up
this attracts the least attention
mentioned that often they used the
undergarments left behind by those
who were released from the jail. The
manual states that all the women
prisoners are to be supplied with bed
sheet, bedspread, pillow and woollen
clothes (during winter). But the real
picture is altogether different with
many women reporting they had no
recourse to any bed sheet or bedspread and 58.2 percent did not have
a pillow. It was also recorded that 8.5
percent women were not provided
warm clothes during winter.
Though food and nutrition-related issues are crucial to the well being
of any society, in the prison set up
this attracts the least attention. The
probe revolved around the quality
and quantity of food and around 32
percent of the women said that the
quantity of food served was not
enough. Below are the reasons
voiced by some of the respondents
on food served in prisons:
(i) The food is so bad that I cannot
even eat whatever amount is given to
me;
(ii) You know how prison food
is………you cannot complain about
it;
(iii) We have been punished and
starving is a part of the punishment;
(iv) I am ok with the quantity but
my growing daughter needs little
72
more so often I have to share my food
with her;
(v) The prison has fixed quantities to
be served and we are not allowed to
ask for more;
(vi) They serve a lot but it tastes so
bad that no one asks for more than
one helping.
(vii) I am fortunate to be here, who
would serve me free food every
day…so whatever I get is all right
with me;
It was observed that responses of
inmates were to a large extent influenced by their background. The poor,
single or deserted women and those
from rural background were found
to be generally submissive and did
not complain about any of the miserable conditions in the prison, including food. Some of them had seen so
abject poverty that they appeared to
be contented with whatever they got
in the confinement. The other issue
was that the prisoners had actually
internalised the fact that as convicts
they deserved to be served inferior
quality of food and they were complacent about it.
It is worth mentioning here that
of all the respondents 43 percent had
fallen sick after consuming the food
served in the prisons and around 26
percent of them had fallen sick several times.
Emerging concerns
The study throws up major concerns
about violations of healthcare and
human rights conditions of women
prisoners. On one hand there are
issues related to biases and discrimination and on the other are issues
related to lack of access to basic
amenities for survival. Based on the
findings of the study following
issues need to be further dwelt upon:
(1) More research has to be done with
people living in institutions, particularly prisons, in order to gather more
evidence about their living conditions.
(2) Prison officials need to be sensitised and informed on how to be able
to address women prisoners with
dignity and protection of their
human rights.
(3) Better coordination between the
department of health and the prisons
is essential for better delivery of
health facilities.
(4) The budget earmarked for healthcare in prisons should be substantially increased and the chief medical
officer should have the authority for
sanctioning the same. Requisition
process for medicines should be simplified and need based.
(5) Each prison should have a committee comprising of at least one
inmate representative to monitor the
functioning of the prison system.
(6) Each prison should be mandated
to submit a report to the home
department about the status of compliance of standards proposed in the
prison manual.
Footnotes:
1. Maharashtra Prison Manual, 1979
2. Government Resolution, Home
Department No. RJM 1063 (XLVII), XVI,
Dated 25th February 1971, Sect. 7 (ii)
3. Government Resolution, Home
Department No. RJM 1063 (XLVII), XVI,
Dated 25 th February 1971, Sect. 8
4. National Crime Records Bureau a ccessed
from http://ncrb.nic.in/PSI2007/
prison2007.htm on 26th October 2009
5. Maharashtra Prisons (Prison Buildings and
Sanitary Arrangements) Rules 1964, Sect. I.
25 & 26
– The writers are activist researchers
with special interest in health and
human rights issues. The study was
conducted by them during their tenure
at CEHAT, Mumbai
A D I VA S I S
Jharkhand's dispensable tribe
O
n the morning of December 6,
2008, Lukihram Tudu, a
farmer from Daldali village in
the Dumka district of Jharkhand,
woke up before daylight to leave the
house, not to bake his mud brick hut,
but to meet thousands of other
Adivasis whose fate, like his, had
been sold to Calcutta Electric Supply
Corporation Ltd (CESC).
A few years earlier, CESC had
contracted with the government of
Jharkhand to commence a multipronged power plant, dam, and coal
mining project that would displace
thousands of Adivasi villagers,
including Lukihram and his family,
from their lands. Although Indian
law requires the government to first
consult the Gram Sabha of villages to
be affected by such projects, legal
obligations were flippantly tossed
aside for a plan that would be incredibly profitable to a small group of
local government and CESC officials
at the expense of thousands of
indigenous villagers.
Lukihram joined his fellow
Adivasi villagers in a field nestled
between Amgachi and Pokharia vilwww.combatlaw.org
lages. After months of pleas to CESC
and the government to cease the project, the villagers had finally decided
to make their voices heard in the
form of a non-violent protest march.
"We do not want to lose our land.
Electricity will not ensure food to our
children," Lukihram and other adivasis chanted as they marched to the
small town of Kathikund. As the
peaceful demonstration progressed,
however, the atmosphere charged
with excitement that had brought
together the villagers was quickly
replaced by fear. A wall of police
force brandishing sticks and guns
blocked the road ahead.
As the protesters came closer,
without any warning or provocation,
the police raised their sticks and
attacked the unarmed Adivasi
women and children, who were leading the march. The tribals tried to
shelter themselves with the banners
they were carrying, but police continued to strike them. Mothers covered
up to protect their children, but
babies as young as 16 months were
severely hit in the attack. "We were
shielding our babies so that they
The government of
Jharkhand has
approved an energy
project that will
displace tens of
thousands of Adivasis
in Dumka district.
Those who have dared
to speak out against the
project have been
arbitrarily detained,
tortured, and even
killed. The government
must cease its
repression of the tribal
activists and terminate
the catastrophic project
immediately, writes
Thomas Becker
73
A D I VA S I S
would not get hurt," recalled Vineeta
Baag, a bleeding mother from
Pokharia. "They still kept hitting us."
The women at the forefront of the
march scattered to all sides as police
beat them and yelled racial and gender expletives. Protesters pleaded
with police that they "don't mean any
harm…. This is a peaceful protest.
We don't want to fight" but the cops
responded with intensified violence,
raising their guns and firing shots at
the crowd. As police fired at villagers, witnesses saw some officials
setting a police vehicle ablaze. It is
not clear why police set fire to their
own vehicle but some believe that the
cops hoped to blame the arson on the
protesters to divert attention from
the excessive violence unleashed by
the security forces. Others speculate
police burnt the vehicle to create a
diversion while they brought in more
force and paramilitary reinforcements, who set up war positions
down the road.
In the face of that violent attack,
many undeterred villagers decided to
continue forward, past the burning
bus, to their destination. As the
demonstrators reached the village of
Tilgani, police and paramilitary forces
again opened fire on them, this time
with more intensity. "It was a rainfall
of fire," one villager lamented.
Protesters tried to seek shelter,
but to no avail. Police shot a 21-yearold youth as he and his family tried
to evade the bullets. All those who
74
came to help the man were also fired
at. As one witness stated, "They were
targeting people as they helped the
youth."
Police violence proceeded for
hours in which even Lukihram bled
to death. Security forces shot dozens
of villagers, killing two. To make
matters worse, many of the injured
did not receive critical medical attention and were allegedly arrested, tortured, or killed by police.
The project
To understand the protest and the
subsequent state violence that took
place that day, it is necessary to
examine the economic and racial
context of the issue in Jharkhand as
well as the calamitous implications of
the CESC project.
Jharkhand is a land of paradox.
On the one hand, the state is incredibly rich with natural reserves, boasting 40 percent of India's mineral
wealth, the highest concentration in
the country. On the other hand, the
state is home to some of the world's
most destitute, dispossessed people,
particularly Jharkhand's indigenous
population.
The state's vast natural wealth has
prompted various national and
multinational corporations to sign
memoranda
of
understanding
(MoUs) with the state government to
extract the state's resources for profit.
In September 2005, CESC, a subsidiary of RPG, signed an MoU with
the Jharkhand government to commence a multi-pronged energy project in the Kathikund region of the
Dumka district.
The CESC plan entails the construction of a 1,000-megawatt thermal power plant, the extraction of
coal from local mines, and the development of a dam. Of the electricity
produced from the project, only 25
percent will be set aside for the government of Jharkhand to purchase.
The rest would be sold to other
states. Thus, the majority of the
power generated from the resources
in the state will not reach its own
statehood.
The implications
The ground reality shows that the
CESC plan to produce electricity
from Jharkhand's resources will have
catastrophic effects on the region's
indigenous population, and it must
be ceased immediately. First, if the
plan comes to fruition, thousands of
villagers will lose the traditional
lands they have inhabited for centuries. The exact number of villagers
to be displaced is not yet clear, primarily because CESC has refused to
provide necessary documents detailing the project. NGOs closely following the plan, however, estimate that
30,000 villagers will be displaced and
54 villages decimated.
Most of the Adivasis affected by
the project will directly lose their
homes. Those "lucky" villagers
whose houses are not submerged
will nonetheless be forced to abandon their cultivated land, the single
source of livelihood for them.
According to CESC blueprints,
roughly 1,000 acres of villagers' farming lands and coalfields will be
appropriated or inundated for the
power plant project.
In Amgachi village where farming is the sole source of income for
the populace, a villager repined
about the loss of entire village's farming lands: "Because it is our only
source of income, we will be painfully affected…The crops, the rice that is
our food, our livelihood, will be
destroyed."
A
woman
from
Domanpur echoed the similar discontent as she explained, "The coal
fields are our only source of income.
If they are taken away, we will have
nothing."
Divesting Adivasis of their lands
is not the sole extent of the injustice
perpetrated against the villagers.
Forced ejection will effectively exterminate their vibrant Santhali culture
that has enriched the lands of the
Dumka belt for centuries. The traditionally tight-knit, communal structure that is characteristic of Dumka's
"original inhabitants" would be shattered when villagers are forced to
travel to other regions to find work.
The small number of villagers that
are permitted to stay on their lands
will also lose their traditional occupation as labour imported from other
regions, particularly Kolkata, bring
not only their customs, but also ancillary problems of increased environmental degradation, health issues,
and drug and alcohol abuse.
Besides the moral and practical
reasons that the CESC plan should be
A D I VA S I S
brought to a halt, legal norms protecting the Adivasi population in
Dumka require the plan to be terminated. Indian law obligates the government to consult indigenous governing bodies before confiscating
Adivasi land. The provisions of the
Panchayat (extension to scheduled
areas) Act states, "The Gram Sabha or
the panchayats at the appropriate
level shall be consulted before making the acquisition of land in the
scheduled areas." Likewise, the
Santhal Parganas Tenancy Act
requires disputes over Adivasi lands
to be resolved by one of the region's
traditional governance systems, such
as Manjhi, Mode Manjhi, or Manjhi
Pargainait.
Various international instruments
provide similar protections to the
Adivasis in the Dumka district. The
Declaration on the Rights of
Indigenous Peoples, to which India is
a signatory, states, "Indigenous peoples shall not be forcibly removed
from their lands or territories. No
relocation shall take place without the
free, prior and informed consent of
the indigenous peoples concerned."
Unfortunately, CESC and the
local government refused to consult
indigenous governing bodies and
failed to obtain the consent of any of
the natives threatened by displacement. The company and government
have nevertheless moved forward
with the project, completely disregarding their domestic and international legal obligations.
The pattern
The failure of CESC and the local
government to obtain the consent of
the Adivasis in the Dumka district
was not mere oversight. Likewise,
the police violence on December 6,
2008 was not a situation that simply
"got out of hand". These incidents fit
into a larger scheme of persecution
and coercion led by the local government and CESC against the poor villagers who have resisted the unlawful seizure of their lands.
When it became clear that
Adivasis would not submit to the
displacement plan, the company and
government focused their initial
efforts on pressurising village leaders. In late 2007, the local government brought a case against and
eventually fired the village leaders of
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Amgachi and Pokharia for their nonviolent action of entering a local government office to deliver a memorandum stating that their villages did
not consent to the CESC plan.
Knowing that the charges were
bogus, representatives from the government offered to reinstate the leaders if they convinced their communities to submit to the project. When
that bribe did not work, government
and CESC officials attempted to
induce spouse of Amgachi's leader
with an array of gifts and money,
including a new home and Rs two
million. In each case, the villagers
rejected the bribes.
Since coercion of village leaders
did not work, the company and government shifted their focus to the
communities itself. The government's early tactic was to brand
Adivasi farmers in the region as
Naxalites. Local police forces even
arrested some of the more vocal
activists under such pretences. While
the Naxalites do operate in many
parts of Jharkhand, there is no evidence that the villagers affected by
the CESC plan are involved in
Naxalism in any way. Such claims are
made merely to discredit the indigenous farmers who do not want their
land unjustly appropriated.
In addition to discrediting villagers, the power giant and the local
government have attempted to trick
Adivasis into giving "support" for the
plant. In spring of 2008, CESC and the
local government convinced two villagers to collect from their fellowmen
in Amgachi and Phokharia signatures
on blank pieces of paper. While the
pretext for these signatures was to
hold elections, the blank pages were
to be used by the local government to
claim that villagers had given written
consent to the project.
CESC and the government
repeated this ruse a few months later
when they set up a kiosk and distributed free rice to Adivasis in the
Dumka district. Officials at the kiosk
made villagers who accepted the rice
sign blank pieces of paper, which the
company and government later were
to use to claim that the villagers' signatures represented consent to the
plan.
Since defamation and deception
did not sway the villagers, the local
government has increased its pres-
sure by arbitrarily arresting the tribal
activists and abusing them. In some
cases, the abuse has come in the form
of denying proper medical attention.
For instance, police denied a villager
proper hospitalisation for months
until the bullet lodged in his eye during the Kathikund protest became
irremovable. In other forged cases,
police forces have tortured detainees
in the name of false charges levied
against them.
Conclusion
With 70 percent of the population living in poverty (roughly 2.5 the
national rate), 87 percent without
access to electricity, 60 percent with-
out access to roads, and the second
highest illiteracy rate in the country,
Jharkhand's indigenous areas could
benefit from responsible development. The CESC plan, however, is
not a project to aid the state's most
marginalised population. Ultimately,
tens of thousands of villagers will
lose their traditional lands and occupation so that a small number of
politicians and business elites can
make a profit.
–The writer is a Henigson Human
Rights Fellow at Harvard Law
School. He currently lives in Sucre,
Bolivia, where he is actively involved
in legal actions against the former
President of Bolivia for his alleged
role in the massacre of indigenous
protestors in 2003
75
TRIBAL RIGHTS
ence and exertion of influence in the
country for generations. But as often
seen in history, inhabiting lands for
generations is not always a precondition for exercise of the rights. The
case of the Chakmas is no different
— it is the struggle of an ancient tribe
in a modern world fighting for their
basic human rights and preservation
of culture. And being the largest of
the 14 major tribes residing in
the CHT, the fate of the Chakmas is
the fate of the indigenous people
altogether.
The lost world
of the Chakmas
Trapped in a time warp is
a tribe that has otherwise
traversed through time
and history. The ancient
tribe of Chakmas from the
rugged hill terrains of
Chittagong Hill Tracts of
Bangladesh has been the
worst victim of a colonial
past, partition of the
subcontinent, creation of
Bangladesh and now
regional politics of India's
north east. This ancient
clan today desperately
needs to be uplifted from
the depths it has been
spurned into, writes
Kenn Larsen
76
n the hilly area of eastern
Bangladesh known as the
Chittagong Hill Tracts (CHT)
resides an ancient tribe of Chakmas
with their own unique historical traditions, culture, language and religion. Their origin and history is
veiled in mystery with very little contextual evidence in existence. The relatively few scholars who have taken
interest in the tribe differ in their
views, while some believe they are
descendents of one of the princely
kingdoms in Champaknagar in
northern part of India, others stipulate they migrated from central
Myanmar and Arakan. Shrouded in
mystery or not, what is clear is that
the Chakmas have been subjected to
many transitions following colonial
presence, in which they have had little or no say at all. Currently residing
in the Chittagong hills as well as in
India, the Chakmas are a suppressed
lot. In India they are denied citizenship and access to fundamental
rights notwithstanding their pres-
I
Colonial past
The path leading to the current circumstances
surrounding
the
Chakmas is paved by a series of historic events beginning with their
early contact with the British through
the East India Company in 1760.
After their arrival in the region, the
East India Company established control over the province of Bengal, ceding the three districts of Burdwan,
Midnapore and Chittagong to British
authority.
Consequently,
the
Chakmas were forced to pay an
annual contribution in cotton for
which they were allowed to trade in
the plain. The Chakma chief became
responsible for tax collection and
developed into a colonial personage
with some of the trimmings of indirect rule. However, disillusionment
of being subject to colonial rule soon
turned to restlessness, and the then
chief of the Chakma tribe, Ronu
Khan, formally declared war against
the British in 1877. The war ended a
decade later following an economic
blockade that forced the Chakmas to
negotiate a settlement. The new
Chakma chief accepted British
suzerainty and agreed to keep the
peace in return for autonomous rule
and restrictions on the immigration
of non-indigenous ethnic communities in the region. The administrative
system was formalised in 1900 by the
introduction of the Chittagong Hill
Tracts Regulation and 35 years later
reaffirmed with the Government of
India Act. Thus the region was designated as a “totally excluded area”
and its inhabitants given the protection of specific legal provisions.
Political divide
The year 1947 saw the complete erosion of this administrative system
TRIBAL RIGHTS
with the British leaving India and the
following Partition of the land into
two separate states — India and
Pakistan — on the basis of religion.
Under the terms of Partition agreement, CHT was originally to be
placed under India, but instead the
residing tribes found themselves surrounded by the borders of Pakistan.
The special status of the region was
initially acknowledged in the country’s first constitution, but revoked in
1964 when the Pakistani government
suddenly refused to provide any special rights or constitutional safeguards. This led to an influx of
Bengali settlers into the area, which
had severely changed the demographic composition of the region.
Essentially, the Chakmas were given
the choice of either moving out of the
region or abandoning their way of
life and merge with Bengali nationalism. During this period, the building
of a long planned hydroelectric dam
was also set in motion in the
Chittagong district. The project was
completed in 1960 and resulted in the
creation of a large artificial lake,
whereby approximately 40 percent of
the tribal land was submerged. The
lack of cultivated land forced around
100,000 tribals, most of them
Chakmas, to resettle in surrounding
areas and some crossed the border to
Burma and the present day state of
Arunachal Pradesh. There were
minor compensations given to the
displaced but many did not receive
anything at all. Given that the
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Chakmas and the residual tribes in
the area were overwhelmingly
Buddhist at the time of Partition,
they felt stronger affiliations with the
Hindu people of India than the
Muslim
dominated
Pakistan.
Together with the revoking of the
special status of the CHT and the
construction of the hydroelectric
dam, a fear of being driven from
their land and losing their cultural
identity began to form shape.
Fight for rights
In due course, east Pakistan receded
and became Bangladesh in 1971,
thereby redirecting the borders and
changing the conditions of the people in the CHT once again.
Immediately after independence, the
Chakmas opted for the retention of
the CHT Regulation 1900, but the
claims were ultimately ignored. This
led to the formation of a regional
political party in 1972, Parbatya
Chattagram Jana Samhati Samity
(PCJSS) where the Chakmas and
other CHT tribes joined hands to
make
their
demands
heard.
However, the continued immigration
of Bengalis into the area and the further ousting of the indigenous people
eventually proved too powerful for
diplomatic reasoning, and an armed
conflict between the military wing of
PCJSS — Shanti Bahini (SB) — and
the Bangladeshi armed forces ignited. The CHT consequently turned
into a militarised zone and remained
so for the following two decades,
where an outnumbered SB fought for
the existence of their people against
an enemy large in numbers and military might. Throughout the war,
there were reports on numerous violations of human rights against the
indigenous people, which were confirmed by various national and international media and human rights
organisations. These included forced
expulsion of the indigenous people
from their lands, torture, rape and
even massacres. At least 13 major
genocidal attacks took place in the
1980s and the early 1990s and no
attempts had subsequently been
made to persecute the assailants.
Although both sides were involved
in military operations against civilians, the Bangladesh army conducted
organised and systematic attacks on
the indigenous population with a
conscious disregard to civilian or
military status and proof of
affiliations with the SB. In June 1986,
the Far Eastern Economic Review
reported:
“…a reorganised Shanti Bahini force
carried out its biggest coordinated attack
on April 29 as it simultaneously raided
several Bangladeshi army camps and the
outposts of paramilitary Bangladesh
Rifles and followed it up with swoops on
new settlements of immigrant Bengali
Muslims. In turn, the Muslim settlers
and government forces carried out
reprisals on tribal villages forcing the
natives to flee to India.”
The very next day of the attack by
the Shanti Bahini, Bangladesh armed
forces raided six villages in the district of Matiranga, two villages in
Khagrachari and 24 villages in
Panchari. After ransacking the village houses and desecrating and
destroying Buddhist temples, the
security forces began raping the
women and torturing and murdering
the villagers with no regards to age
or gender. The ones who escaped the
bloodbath either sought refuge in the
forested surrounding hilly areas or
headed towards the borders of India
and Burma. However, undertaking
such a journey was particularly risky
as the Bangladesh military retained a
significant presence in the CHT and
the borders were heavily guarded by
the country’s paramilitary border
guards, the Bangladesh Rifles (BDR).
On May 18, 1986, a group of 200
indigenous people, mostly old men,
77
TRIBAL RIGHTS
women and children defied the odds
and reached the borders of Tripura in
India. They had managed to remain
undetected by the Bangladesh army
since fleeing the atrocities committed
in Matiranga. However, a few miles
before reaching security, they were
spotted by the BDR and subsequently escorted back to hostile lands. The
BDR then incited the residing
Bengali settlers to act “correspondently” and avenge the actions of the
SB and stood still as witnesses as this
group of old men, women and children was brutally slaughtered. Due
to many such horrendous actions
throughout the war, around 70,000
indigenous people with the majority
being Chakmas were forced to flee
the lands of their ancestors – lands
that had been their possession before
India, Pakistan and Bangladesh ever
entered any history books. Many
made it to safety but some faced a
destiny known only to their
assailants.
Eventually a peace accord was
signed in 1997, which reduced the
level of systematic violence and general lawlessness of the region. It
recognised some of the old demands
found in the CHT Regulation 1900,
but crucial parts are yet to be implemented or cleansed from any political self-interest. This includes the formation of a land commission to
reclaim and dispose off land to its
indigenous owners, a scheduled hill
tracts district and regional councils
to formally administer the region
and ensure just treatment to all
groups, and finally a dispersion of all
Bangladeshi military camps in the
area. The presence of the latter poses
a constant threat to the Chakmas and
there have been several military
attacks against the indigenous population of late. Moreover, the military
is reported to be actively involved in
helping Bengalis to settle in the CHT,
which renders the Chakmas and the
other natives without any momentous means of opposition. A climate
of fear is building and currently subverting what remains of any organised peaceful resistance on the part of
the indigenous people. The situation
is further endangered by the fact that
the Bengali settlers have nowhere to
go if the land commission and its
directives are carried out, and therefore are unlikely to leave in a peace78
ful manner. However, not every
Bengali settler wish to remain in the
CHT and have voiced their willingness to leave provided that land is
given in areas outside the CHT. In
essence, it is clear that the peace
accord is adhered to in ways that are
disadvantageous to the tribal groups,
leaving them vulnerable to illegal
oppression by the Bangladeshi
authorities as well as the Bengali settlers. Whether or not there are religious-nationalistic grounds, it is
indeed a fact that the Buddhist tribal
groups have faced extensive oppression at the hands of the various
Islamic governments. The constitution of Bangladesh solely recognises
Islam as the state religion and
Bengali as the only language. This
amplifies the creation of a homogenous Bengali Muslim society with no
room for other groups or national
identities. Furthermore, representatives of the Bangladesh government
have under the auspices of the
United
Nations
occasionally
declared that there are no “indigenous” people in Bangladesh.
Although this can be cast aside as a
debate on semantics, constitutionally,
there is one people, one language
and one religion in Bangladesh. The
ill-treatment and torture, threats and
killings, along with destruction of
houses and temples have forced
many of the indigenous people to
search for a better life elsewhere.
Many of those have thus placed their
hopes for a better life outside
Bangladesh and across the borders
to India.
Stateless people in India
The first group of refugees from the
CHT was given migration certificates
to enter India in 1964. This was a testament to the willingness of the government to accept the Chakmas as
future citizens of India. Currently,
approximately
80,000
Chakma
refugees are residing in the state of
Mizoram, 50,000 in Tripura and
100,000 in Arunachal Pradesh. Many
of those have come to lead a better
life and have eventually developed
strong ties with the region. They
have voted for state elections and
paid taxes on the lands. The new
generations have been born in India
and never known any other home.
Despite the initial willingness of the
Chakmas are a
suppressed lot.
In India they are
denied citizenship
and access to
fundamental rights
notwithstanding
their presence and
exertion of influence
in the country for
generations. But as
often seen in history,
inhabiting lands for
generations is not
always a precondition
for exercise of
the rights
TRIBAL RIGHTS
Indian government to accept the
Chakmas as statehood, many are still
denied citizenship and the rights and
privileges they are entitled to. Even
after 43 years since the first wave of
Chakma refugees crossed the Indian
borders from Bangladesh, they are
the victims of many unjust practices
directly flowing from this stateless
position. The nature and gravity of
the problems faced by the Chakmas
differs from state to state, ranging
from the non-availability of employment, trade licenses, education, security and basic health facilities.
Hunger and poverty are a chronic
and pervasive problem for the community and they have faced wholesale confiscation of ration cards and
subsequent denial of assistance. In
1991, government agencies stopped
providing Chakma farmers with
improved seeds, fertilisers, pesticides, agricultural tools and implements at subsidised rates, which are
necessary for the economic development of this tribe. This continued
bureaucratic denial of the right to
www.combatlaw.org
apply for citizenship must be seen as
in direct violation of the laws in
India. By any reading of the Indian
citizenship law, the Chakmas are
legally eligible to be citizens by birth,
or because they came to the country
on a certain date as the following
provides:
Section 5(1)(a) of the Indian
Citizenship Act, 1955 as amended by
Act No 51 of 1986 states: “Persons of
Indian origin who are ordinarily resident
in India and have been resident for five
years immediately before making an
application for registration shall be eligible to be registered as citizens of India.”
Sections 3(1) and 3(1)(a) state:
“Except as provided in sub-section (2),
every person born in India, on or after
the 26th day of January, 1950, but before
the commencement of the Citizenship
Amendment Act, 1986; ... shall be a citizen of India by birth.
This was also cemented by the
ruling of the Supreme Court in 1996,
in which every Chakma refugee who
met the requirements should be
counted as eligible to Indian citizen-
ship in the state of Arunachal
Pradesh — a ruling that was transcendent to all other states. The
Chakmas, especially in Arunachal
Pradesh, are subject to severe unjust
and inhuman practices; not only
have the state authorities refused to
comply with the verdict of the
Supreme Court, some reports even
suggest that the tribals have been
subjected to sectarian violence supported by the state government. The
fact of the matter is that the Chakmas
are facing the same struggle in India
from which they have tried to escape
for almost half a century in their land
of origin and they have nowhere to
turn to seek help. In recognition
hereof, they have tried to change
their circumstances on their own by
accessing the political processes that
affect them. In 1991, the Chakmas of
Arunachal Pradesh formed the
Committee for Citizenship Rights of
the Chakmas of Arunachal Pradesh
(CCRCAP), but indicative of their
desperate situation, this move met
with condemnation by Indian
authorities and nationalist movements. As such, the All Arunachal
Pradesh Students Union (AAPSU)
responded with a “Quit Arunachal
Pradesh” notice to the Chakmas,
demanding their departure from the
state by September 30, 1994. In fear of
the fatalistic repercussions, a large
number of Chakmas fled the state to
take refuge in the neighbouring state
of Assam where the state government issued a “shoot at sight” order
against them. This was brought to
the attention of the National Human
Rights Commission (NHRC), which
directed the state government of
Arunachal Pradesh and central government to provide information
about the actions taken to protect the
lives of the Chakmas. In the meantime however, all state party-leaders
and the AAPSU held a meeting on
September 2, 1995 where they passed
a unanimous resolution to resign
from national party membership if
the Chakmas as well as the Hajongs,
another refugee tribe from the CHT,
were not deported by December 31,
1995.
The Chakmas are thus unwanted
people in both India and in their former ancestral lands in Bangladesh.
Over the years, some of the CHT
refugees
have
returned
to
79
TRIBAL RIGHTS
Bangladesh under the conditions
that the Bangladesh government
return their lands as well as ensure
their safety. However, only a small
percentage of these promises were
kept. And although the land legally
belongs to the indigenous people,
many of the crucial land documents
have been destroyed or lost during
their escape to India and the only
records of the deeds are presently
in the hands of the Bangladeshi
authorities.
Current affairs in Bangladesh
Bangladesh has suffered from political violence and countless transitions
of power since its birth in 1971.
Corruption has been prevalent
together with malicious rivalry
between political parties leading to
further political instability in the
country. Following a buildup of violence, a “caretaker” government took
over the leadership of the country on
January 11, 2007 with the aim of rooting out corruption and initiate democratic reforms. Many politicians and
officials were arrested and military
officers removed from positions
within the state of affairs. This development culminated with the democratic election on December 29, 2008
whereby Sheikh Hasina and her
Awami League party took office.
Violence and threats against the
Chakma and the indigenous people
of the CHT intensified as well. As
political rights may officially have
been installed and many necessary
changes made within, it still remains
to be seen whether the rule of law in
Bangladesh continues to be subverted to individual political concerns,
weak institutions and a gross disregard for human rights. There have
been no elections held in the local
bodies of the CHT, where non-elected officials are still presiding. It is
clear that democracy in the CHT
must be implemented in line with the
rest of the country and the government of Bangladesh will have to provide a timeline to hold such elections
in both the hill district councils and
the regional council of the CHTs.
Wake up call
The Chakmas are thus languishing as
stateless people. For more than two
centuries, they have not been in
charge of their own faith and have to
80
Learning from the
history of the Tibetan
refugees, who have had
their conditions
improved due to
enormous exposure
through media and
within political circles,
Chakmas have to follow
the similar way to have
any future. Given that
Bangladesh is heavily
dependent on foreign
aid, a part of the
solution to the problem
lies in the hands of
the donor countries
a larger or lesser extent been
deprived of their right to land, culture, language and religion. In
Bangladesh, they have faced cruel
and horrific treatment at the hands of
the military and been the target of
genocide. In both India and
Bangladesh, they lack the protection
of the country’s legal safeguards, the
access to equal participation in political processes, and other rights and
privileges conferred by citizenship.
As a consequence they are victimised, exacerbated by the fact that
any abandonment of the Chakma
people is politically costless due to
their stateless position. But, time is
running out. The ones who are left in
the CHT are losing their unique culture through the influence of Bengali
nationalism. If nothing is done to
bring the world’s attention to the
atrocities committed against this
ancient tribe and aid is not provided,
it is only a matter of time before this
unique culture is lost forever.
Learning from the history of the
Tibetan refugees, who have had their
conditions improved due to enormous exposure through media and
within political circles, Chakmas
have to follow the similar way to
have any future. Given that
Bangladesh is heavily dependent on
foreign aid, a part of the solution to
the problem lies in the hands of the
donor countries. It is crucial that they
use their economic levers to exert
force for a change in the policies
towards the CHT. And as Sheik
Hasina and her Awami League won
by a landslide and now has a strong
mandate, they have a unique opportunity to address the human rights
problems in the CHT that have been
ignored by successive governments.
Bangladesh has also ratified the
International Covenant on Civil and
Political Rights and the International
Covenant on Economic, Social and
Cultural Rights1, and together with
international support, this is a road
for the Chakmas to pursue. One must
remember that it is not the pursuit of
the right to self-determination that
creates conflict, but the denial of the
same. There are no longer any safe
lands deep in the jungles to where
the Chakmas can resettle and practice their culture. What is left for the
Chakmas is either to face unjust
treatment and merge with ways alien
to theirs, or retreat into the dense forest of their minds. The latter, too, will
only last for a time.
Footnote:
1. Article 1 of both covenants reads: “All
peoples have the right of self-determination.
By virtue of that right they freely determine
their political status and freely pursue their
economic, social and cultural development.”
–The author was an
intern with Juvenile
Justice Initiative at HRLN
ENVIRONMENT
Haunting Beauty
of the Ghats
he charm of the ecological unit
called Sahyadri is there! The
more you visit Sahyadri or the
Western Ghats the more you
realise how little you know about
nature. Flipping through Sahyadri:
Reminiscences and Reflections -- edited
by Sudhirendar Sharma and published by Prakruti Hulemalgi
Brothers
Uttara
Kannada
in
Karnataka on behalf of the Save
Western Ghats Campaign, one easily
agrees with the editor that Sahyadri
is a veritable laboratory where nature
is still busy conducting its evolutionary experiments. The Sanskrit word
Sahyadri truly defines the depth and
dimension, richness and diversity of
Sahyadri, re-christened as Western
Ghats by the colonialists.
The book makes a fascinating
reading and tells about the rich geography and the diversity of Sahyadri's
cultural heritage. According to
Sharma, so ancient is its creation that
some of the underlying rocks in the
region are considered to be around
two thousand million years old. Yet
the region has been active with high
potential for erosion and correspondingly high sedimentation yields.
"Sahyadri like the South American
rainforests form the girdle of the
earth and help maintain global ecological balance", opines Sharma. This
fact may hold greater significance
given that the monsoon occurrence,
amongst other reasons, has direct
correlation to the geological existence of the Sahyadri. The editor is
quick enough to notice that the geomorphology of the Sahyadri has been
its nemesis as high slopes, deep
gorges and estuaries have become
the most desired sites for hydroelectric and thermal power projects.
Besides, extraction of mineral
deposits has contributed to the
T
www.combatlaw.org
Sahyadri: Reminiscences and Reflections captures the
diversity of the Western Ghats or Sahyadri while touching
upon the ecological wounds inflicted by the greedy and
powerful, writes Suresh Nautiyal
destruction too. In a nutshell, ecological destruction continues in the
name of development.
The book has three indiscrete sections. The first section comprises of
three articles, while the second
explores the ecological riches of the
ecological unit. The last section captures the contours of current developmental challenges in the backdrop
of the historic Silent Valley campaign. Sharma has included writings
of the activists like Madhav Gadgil/S
Narendra Prasad/KM Hegde, Claude
Alvares, Ian Lockwood, KA Shaji,
Shekar Dattatri, NA Naseer, Zafar
Futehally, Sebastian Rodrigues and
Max Martin in the volume.
According to the chapter
"Mountains Without Snowpeak", the
geology of Sahyadri creates three distinct zones across its long stretch. In
many ways, the region justifies it
being called ghats as it offers the
stairs or steps that are commonly
associated with the term 'ghat'.
In the chapter "Asserting the Right
Cause", Claude Alvares draws parallels between the Chipko Movement
in the central Himalayan region
(Uttarakhand) and the Appiko
Movement in his home state of
Karnataka. He points out that while
the Chipko Movement's fierce passion captured the hearts of people
soon becoming a legend; the Appiko
Movement in Karnataka began as a
movement to protect forests and the
agriculture surpassing beyond that
stage to a wider consciousness
of more important ecological
tasks, particularly conservation of
Sahyadri, the oxygen bank of
the nation.
The chapter "The March That Was
…" unravels the fact that the principal
sufferers of forest loss in the Ghats
have not been the animals alone but
tribal and rural poor as well.
The chapter "Mine But Not Mine"
expresses concern over mining in the
state of Goa. Sebastian Rodrigues
points out in this article that the history of mining in Goa is intrinsically
linked with its colonial past and that
who worked for the erstwhile
Portuguese dynasty have huge
stakes in the state's mining industry
today. According to him, the mining
has badly damaged agriculture and
silted rivers resulting in spontaneous
unrest amongst the villagers.
The chapter "Silent Valley" warns
that no battle in the field of conservation is ever final, and there is no
guarantee that the Silent Valley will
remain silent for all time to come.
The last chapter "Silent Valley in
Turmoil … Again" by Max Martin
rightly concludes that the protection
of biodiversity demands preserving
the largest possible natural habitat
unit, including the Silent Valley.
The beautiful photographs by NA
Naseer, for whom forest is the first
home, give true meaning to the
words written in the book. In its
Preface, Sharma rightly points out
that the book captures the paradise
that is Sahyadri, through NA Naseer's
lense; and the hell that has been let
lose on it, through the pens of noted
writers. In brief, the book captures
the diversity of Sahyadri even as it
examines the ecological wounds. It is
worth spending Rs 200 for a 80-page
colour volume on the rich biodiversity of Sahyadri! ■
81
JUDGEMENT
HIV/AIDS: HC brings hope to many
In a landmark judgement that has wide implications, the Bombay High Court has ordered
free of cost second line treatment to persons living with HIV/AIDS, thus bringing a sigh
of relief to many who were not responding to first-line therapy
he Network of Maharashtra
People with HIV had filed a
petition in public interest in
March 2009 in the Bombay High
Court against the Ministry of Health
& Family Welfare of the Union of
India, the National AIDS Control
Organisation (NACO), Maharashtra
State AIDS Control Society, Sir JJ
Hospital and the Ministry of Health
of the State of Maharashtra on the
issue of provision of free second line
treatment to HIV positive persons
who were not responding to first line
antiretroviral therapy (ART).
The petitioners demanded that
the respondents be directed to ensure
that all those in need of second line
ART on the basis of clinical evaluation be provided with such treatment
free of cost irrespective of geographical location, registration with an ART
centre, time-span on first-line ART or
any other condition. The petitioners
stated that despite the initial phase of
the pilot programme for provision of
second line ART being completed,
there were stringent restrictions as to
who can obtain the treatment at centres and that those restrictions were
not based on medical need but on
arbitrary cut-offs including length of
time on first line treatment, residential address of the patient etc.
The Network of Maharashtra
People with HIV had conducted a
fact-finding study amongst people
registered at ART centres in Pune for
whom first line treatment was no
longer working. Details of eight such
extremely critical persons, some of
whom had a CD count as low as 14,
were provided in the petition with
their consent. The petition also pointed out the shocking revelation that
people who are eligible for second
line treatment were being made to
sign waivers to the effect that whilst
they understand that first line ART
was not working on their bodies,
they could not afford second line
ART and would hence like to contin-
T
82
ue with the first line treatment. These
people did not understand what they
had signed and the implications of
such
a
waiver
upon
their
treatment.
The Government of India had
begun providing first line treatment
to people living with HIV/AIDs since
2004. However, resistance to first line
ART had developed gradually as a
result of which many persons were
not responding to the treatment.
After a campaign by several advocacy groups across India, the
Government started a pilot programme in 2008 in two hospitals (Sir
JJ Hospital in Mumbai and
Tambaram
Sanatorium
near
Chennai) for dispensation of second
line ART. Under the programme anyone not living in the state was not eligible to receive the treatment regardless of medical need. It was further
announced that from December 2008,
the Government would bring eight
more centres across India under the
second line treatment pilot project.
However, at the time of filing of the
petition, some of these centres neither have drugs nor the facilities for
testing and provision of the treatment. In an affidavit filed by NACO
in the Supreme Court in October
2008 in a related matter, it was stated
that the technical resource group at
NACO had, on the basis of the prevailing scenario, recommended that
second line ART be provided in a
phased manner starting with a pilot
project at two centres and that during
the pilot project, people who had
been on ART at those centres for at
least six months be considered for
treatment.
By an order dated August 13,
2009, the High Court recorded that
the competent authority of the
respondents had decided to provide
free of cost appropriate treatment
including second line and any other
treatment as may be advised to the
petitioners and any other patient
with HIV.
This order will provide relief to
several persons across the country
who are not responding to first line
treatment but who are unable to
obtain second line ART, as they are
not eligible under the arbitrary
norms laid down by NACO. ■
FA R M E R S ' S U I C I D E
Farmer graveyard
While Chhattisgarh is much talked about for the Naxal
threat alone, another grave crisis has been kept carefully
under the wraps. But reports reveal that hundreds of
farmers, trapped in a vicious circle of debt, have been
silently committing suicides for nearly a decade now.
Shubhranshu Choudhary reports from the ground zero
It is not the issue but the people writing about it who need to be investigated."
hichever way we calculate
the farmer suicides data
from
the
national
crime records bureau (NCRB),
Chhattisgarh retains a place in the
top five states. It fits in the criteria to
reserve its hegemony among the
other competing states at the fourth
position considering the total number of farmers committing suicide;
number three considering the farmers suicide rate (FSR) per one lakh
farmers; number three again considering the rate of farmers' suicide per
one lakh male farmers; and number
one considering farmers' suicide rate
per
one
lakh
population.
Chhattisgarh tops this list every year
since its inception in 2000.
When Vidarbha saw 1,065 farmer
suicides in 2006, Chhattisgarh saw
1,483 the same year. According to
NCRB, the suicide rate among
Chhattisgarh's farmers in 2006 was
6.49 per one lakh farmers, followed
by Maharashtra with 4.28, Kerala
with 3.37, Andhra Pradesh 3.24 and
Karnataka with 2.57.
While farmer suicides in other
states have drawn much media and
government attention, those in
Chhattisgarh have gone virtually
unnoticed. Yet, the suicide rate
among farmers is the highest in
Chhattisgarh.
The
media
in
Chhattisgarh claims farmer suicides
does not happen here. Their rather
simplistic logic is that farmers do not
grow cash crop in the state and
paddy does not require much investment, hence the story is not true. The
chief minister has vehemently proclaimed, "Not a single farmer has
committed suicide ever due to debts.
W
www.combatlaw.org
So what is the real story?
Police records show the details of
farmers who commit suicide due to
debt. Moreover, some more digging
up of the issue reveals that the problem is very complex. The big farmers
in Chhattisgarh have almost stopped
tilling the farms on their own and
lease out their lands to small farmers
and the landless. Hence, many small
farmers end up cultivating bigger
farms than they themselves own. The
input cost in paddy cultivation has
been steadily growing and the labour
cost has gone up drastically with
NREGA coming in force. After giving
rent to the landowner, the cultivator
is left with abysmally low profit. So
the farmer, who cultivates, thus is
compelled by circumstances to take
loan which is many times borrowed
from a local moneylender who
charges a higher rate of interest. The
landless cultivating a farm of a big
landowner does not get any loan
from the co-operatives because they
does not have papers to be submitted
as against security. Consequently,
after being indebted to the moneylenders from head to toes, many of
such farmers and the landless commit suicide due to continuous distress. Unfortunately, as they farm on
leased land, their suicide is not
lodged as farmers' suicide in police
records, otherwise, the actual number of farmers killing themselves
would be even higher.
The districts with the highest
number of farmers' suicide are the
ones that have the maximum utilisation of fertilisers. The rate of suicides
in the tribal districts of north and
south Chhattisgarh is less than half
of that of the central part of the state.
So, is it the income from forests in the
north and south that is saving tribal
farmers in these areas? The farmers
opined that if the labour cost is calculated at the rate of minimum wages,
then the minimum support price for
paddy should be at least the double,
if not more. A moneyed farmer earns
profit today only because he pays
less than the minimum wage to the
labour. Nevertheless, getting labour
at cheaper rates is becoming much
difficult, especially closer to the
urban settlements. Many farmers are
keen to sell off their land and resort
to self-farming only as a last option
available with them.
The police records have many
cases of farmers' suicides with reasons of death stated as, economic
pressure, mental illness, drinking,
fight, tension and "unknown". Farm
scientist Sanket Thakur explains,
"The income from farming is reducing every year and the farmer goes
into debt ordinarily. Sometimes it is
the general sense of hopelessness
which translates into suicides. The
immediate reason of a suicide might
be a fight with the wife, but in many
of these cases farming distress provides an active background."
The saga is not just to be concluded here. This subject needs thorough
investigation for unravelling the puzzle of loss of hard pressed human
lives. Bob Dylan once sang, "How
many deaths does it take to be known
that too many people have died?" An apt
question for Chhattisgarh.
–The writer is an
activist who runs an
internet-based citizen
journalism group, CGNet
83
VILLAGE COURTS
Until now, no clear
distinction has been made
between a Gram Nyayalaya
and a Nyaya Panchayat
since both are being used
in an undifferentiated
manner to refer to justice
delivery mechanism at the
grassroots level. A
superficial view may create
a misconception that the
two are competing entities,
but a closer look shows the
two may actually be totally
different in their approach
Speedy justice at grassroots
W
ith an aim to make the justice delivery system cost
effective and easily accessible, efforts have been in place to
decentralise it by exploring and instituting various supporting mechanisms for several years.
The first step was introduction of
Lok Adalats to reduce the delays and
burden on over-stressed judiciary
and judicial proceedings. Lok Adalat
means people's court, in contrast to
the regular law courts established by
the government. It is one such effective alternative dispute resolution
mechanism which has been functioning for last few years. Though the
Lok Adalat lends itself to easy settlement of money claims there is scope
for settlement of other disputes as
well. Partition suits, damages and
matrimonial cases can be easily settled before these courts as the scope
for
compromise
through
an
approach of give and take is high in
these cases.
It primarily focuses on bringing
an amicable settlement between the
parties thereby reducing the litigation process. However, Lok Adalats
by themselves are not sufficient.
The further need to create a
decentralised mechanism has been
explored by the law commission in
84
its14th, 114th, and 154th reports. The
Balvant Rai Mehta committee report
stressed on setting up legal aid structures for the village panchayats so as
to provide the rural populace an easier access to inexpensive and speedy
justice delivery mechanism.
The task assigned to the judicial
reforms commission was referred to
the law commission in 1986 with the
following mandate of:
(i) Establishing and strengthening
the institution of Nyaya Panchayats
and other mechanisms of resolving
disputes in rural areas.
(ii) Setting up a system of participatory justice with defined jurisdiction
and powers in suitable areas.
(iii) As a response, the law commission, in its 114th report, explores various options and proposed setting up
of Gram Nyayalayas.
Similarly, the 154th law commission makes references to Nyaya
Panchayats and Gram Nyayalayas
interchangeably.
As of today, there are two parallel
processes going on. One initiated by
the law ministry, which is about setting up of Gram Nyayalayas as the
lowest wrung of the judiciary. The
bill on Gram Nyayalayas was introduced in 2005 but withdrawn
because of financial constraints
envisaged by the finance ministry in
operationalising it. Subsequently, it
was reintroduced and passed in 2008.
Parallel to that, the ministry of
Panchayati Raj has undertaken the
task of setting up Nyaya Panchayats
which envisage mechanisms for participatory dispute resolution and justice. A committee was set up to deliberate upon the issue and formulated
a bill. The bill was sent for feedback
and suggestions to various departments and states and has now been
incorporated in the Gram Swaraj Bill,
2009 that has been circulated by the
Panchayati Raj ministry.
Interestingly, until now, no clear
distinction has been made between
Gram Nyayalaya and Nyaya
Panchayat. Both are being used in an
undifferentiated manner to refer to
justice delivery mechanism at the
grassroot level. A superficial view of
the matter may create a misconception that the two are dealing with the
same issue and, therefore, are competing entities. A closer look gives a
clear picture that the two may actually be dealing with the same matter
but are totally different in their
approach.
Now the question arises that if
the two are dealing with same matter
but with different approaches,
VILLAGE COURTS
should the discussion be focused on
which of the two is better and thereby choosing one over the other? Or is
there a possibility of creating systems
which are stand-alone institutions
and yet complementing each other
thereby at best making the effort of
"access to justice" more comprehensive?
In other words, the question is
not whether Gram Nyayalayas are
better than the Nyaya Panchayats or
vice versa. Such a debate will only
lead to a win-lose situation where the
objective of creating a decentralised
justice deliver mechanism will take a
backseat.
The two systems need to be
looked at from the following dimensions:
Basic approach
One of the first things we need to
understand is the difference in the
basic approach of the two mechanisms. If one goes through Gram
Nyayalaya Bill, 2008, it focuses on
appointment of judicial officers for
dispute adjudication. The GNB talks
of setting up of courts at the village
level for one or more gram panchayats. It is based on the same logic with
which village health centres and primary healthcare centres were set up.
While a doctor is available at the
PHCs, the village health centre
works as a preventive, first aid,
health awareness and monitoring
unit managed and manned by the
community and ideally should be
run and owned by the village
Panchayat. Though the GNB relaxes
the procedure and formalities, the
basic approach is that of adjudication
by an appointed body.
If one looks at the state legislation
of Bihar, Jammu & Kashmir, Haryana
etc. the Nyaya Panchayats are envisaged as community-based bodies
with elected representatives involved
in the process of justice delivery.
Thus the basic tenet of a Nyaya
Panchayat is that of a self-managed
body including raising its own
resources.
To further explore the philosophical underpinnings of both these systems, one has to be essentially rooted
in an adversorial method where a
technically qualified third party tries
to render justice. The result is in the
win-lose framework and there is no
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true solution to the dispute. The
whole process is distant from the
local reality and neutral to the sociocultural dimension of the dispute. It
also has the advantage of being unbiased.
The Nyaya Panchayats are participatory bodies that involve the community in the process of justice delivery while the Gram Nyayalayas
exclude any people's participation.
The Nyaya Panchayats, if constituted properly, can play a vital role in
social engineering. It can provide an
opportunity for changing the power
balance in the villages. The Gram
Nyayalaya, on the other hand, maintains the status quo by looking at disputes purely from a legal framework
and is supposedly neutral to all other
dimensions.
Transparency
The justice delivery process traditionally adopted by the Nyaya
Panchayats should essentially be in
the public domain. While the state
enactments are silent on this aspect
or at best talk of being "open" to public, the proposed Nyaya Panchayat
Bill must emphasise on this aspect. It
would have sanctity and respect in
implementation due to peer pressure. Unlike the judgements of the
court where very often execution
becomes a problem, the decisions of
Nyaya Panchayats will be simpler to
execute.
The Gram Nyayalayas, on the
other hand, in the spirit of the regular judiciary will be behind the closed
The Nyaya Panchayats are
participatory bodies that
involve the community in
the process of justice
delivery while the Gram
Nyayalayas exclude any
people's participation
doors where community participation will be absent.
Complex legality
vs common sense
The emphasis in a Nyaya Panchayat
is on wisdom and common sense of
the people to find solutions to disputes and in the last resort give an
opinion as to what is just. The role of
the Nyaya Sahayak or any technical
person is basically to ensure compliance with legal and constitutional
framework. The Gram Nyayalayas
are based purely on adjudicating
from legal-illegal framework and
therefore, slowly may fall prey to
procedures and/or delays as the person delivering justice has to be unbiased.
Accessibility
The Nyaya Panchayats will be operational within the boundaries of the
village and therefore accessibility
will be easier both in time and in distance. The Gram Nyayalays, however, will be at the Taluka levels or
mobile at "convenient" places, hence
may be difficult to access by the
weaker sections of society as well as
the time would be determined by the
convenience of the Nyaya Adhikari
and not by the community/litigant.
The Nyaya Panchayats are envisaged as devolved entities for settling
disputes and if necessary delivering
justice locally. They come with inherent powers based on the faith put by
people in the process whereas the
Gram Nyayalayas are a result of further decentralisation of the hierarchical judiciary and derives its power
from the superior courts.
It is important to address the
issue of what will be the relation
between the two systems of justice
delivery in rural India as there could
be a duplication of jurisdiction. This
can be avoided by fixing different
pecuniary and imprisonment limits
for the two bodies. The disputes with
lesser pecuniary or punishment can
be handled by the Nyaya Panchayats
and beyond that limit can come in
the purview of the Gram Nyayalayas.
–Prepared by Centre For
Social Justice for Indian Institute
of Paralegal Studies, for the drafting
committee appointed by the
ministry of panchayati raj
85
DOMESTIC WORKERS
Domestic worker
in a hostile world
Languishing under the crushing wheels of poverty,
thousands of women migrate from rural areas to mega
cities in search of livelihoods. Ending up as domestic
servants, in the absence of any legal mechanism to protect
their rights they not only face discrimination and
harassment at the hands of their employers but also
become victims of abuse, exploitation and trafficking by
mushrooming, often unregulated placement agencies.
Anisha Mitra & Karelia Rajagopal carry out a survey in the
national capital and present the chillingly grim side of our
modern city
n a memorable scene in Satyajit
Ray's film Aparajito, the destitute
Brahmin widow Sarbajaya watches
her son learn to serve. She has recently obtained work as a cook in the
household of a rich Brahmin, where
her employers are considerate and
inconsiderate in the manner of feudal
lords. She observes from the top of the
stairs as the master of the household
sends for her son to light his pipe and
tells him to pluck gray hairs from his
head, rewarding him with a tip.
The scene described above is as
much a powerful comment on mother-love and gender expectations as it
is about the extreme and peculiarly
gendered stigma attached to the
identity "domestic servant" in India.
Recent studies on the working class
in India have revealed that ideologies
and practices of gender, caste and
religion both shape the contours of
the workplace and the trajectory of
class identities.
"Bai", "didi", "aaya"-- no matter
what you call them -- the female
domestic servants are an integral part
of the Indian households to make
their inhabitants relax and rejoice in
leisure. But, there is a dark and probably heart wrenching reality behind
that small, shy little smile she passes
when you praise her.
Domestic servants constitute a
section in society which got no law to
I
86
protect their profession. According to
ILO, "a domestic worker is someone
who carries out household work in a
private household in return for
wages". They, in fact, are not even
recognised as labour to benefit from
the labour laws. Their rights are at
the mercy of the employer or the
placement agencies, which have
mushroomed like anything in the last
5-6 years in urban areas to cater to the
domestic needs of the city dwellers.
These women are subjected to
exploitation from all ends -- in terms
of work, pay and worst of all in terms
of dignity and humanity.
Since there are no checks on the
functioning of the placement agencies, their mode of work is highly
questionable in the backdrop of gross
violations of the rights of domestic
servants. Majority of the women
hired by these agencies are brought
in from other states, mostly villages,
on the pretext of getting work in the
cities and end up being domestic
helps. Many a times they are illiterate
with a different language background and find it very difficult to
communicate with their respective
employers. This makes them more
vulnerable.
According to a recent United
Nations Development Programme
(UNDP) report, nearly 40 percent of
domestic servants in India's financial
capital Mumbai are under 15 years of
age and the number seems to be
increasing at an alarming rate. "Often
these young domestic helpers are
abused, verbally and physically and
also sexually exploited," the report said.
Yet there is no national legislation
to protect the rights and ensure the
welfare of this huge army of domestic workers. The women have no
legal protection in terms of her
employment and working conditions. They are completely at the
mercy of their employers, and have
no job security. There is an estimated
population of more than 100,000
domestic workers in Delhi alone, a
figure which is expected to rise sixfold in the next five years, according
to
the
International
Labour
Organisation (ILO).
Growing consumerism, the need
to earn by both partners, and the
trend towards nuclear families has
increased the demand for domestic
helps across many cosmopolitan
cities. To cater to the growing
demand for them, a number of placement agencies have sprung up in
cities across the country. But what
might have been expected to streamline and regulate a sector where hitherto the employer called all the shots
has not resulted in any improvement.
A total absence of regulation under
the labour laws has meant that the
often exploitative nature of domestic
work continues unabated. There are
more than 2,400 domestic placement
agencies operating in Delhi, out of
DOMESTIC WORKERS
which only 24 are registered with the
department of labour. Most of them
don't even have offices. They just
give out telephone numbers, so it is
difficult to track them down. (Source:
RTI filed by Bachpan Bachao Andolan)
Minors in demand
The implication of the issue of
licences is that it gives a legal authority to many to exploit and traffic people from one city to another.
A substantial number of domestic
servants, mainly young girls and
women, are trafficked to cities from
states like West Bengal, Orissa and
Jharkhand. The source districts are
some of the poorest in the country,
inhabited by minorities, mainly
scheduled tribes. Many of these girls
and women are lured by agents in the
villages with incentives of a good pay
and life.
Another implication is an increase
in number of minors appointed as
domestic helps. In wake of the Child
Labour (Prohibition and Regulation)
Act, 1986, the placement agencies
have invented a new tactic of issuing
forms which contain the details of the
domestic worker, which is forwarded
to the employer. The modus operandi is that any minor regardless of
their age is registered as 18 years in
the form. So when the employer is
hiring a servant he is on paper
employing a major and not a minor.
This is done because many
employers want young girls who can
entertain their little children. Another
reason why minors are in demand
because they are inexperienced and
hence don't offer resistance to the ill
treatment meted out to them.
The salary structure of the domestic servants depends upon the category they belong to, that is, there are
generally three categories: Unskilled,
semi-skilled and skilled. If a worker
is unskilled they are paid anything
between Rs1000-1,500, the semiskilled is paid around Rs 2,000 and a
skilled is paid Rs 3,000. The employers are not supposed to pay the servants their wages but to the agency,
which in turn leads to economic
dependence of the workers on the
agency people, who keep a larger
share of the income as "commission"
and give meagre amount to the servants. What human rights activists
dread most is that the agencies are
www.combatlaw.org
found to be dealing in other forms of
trafficking as well such as sex trafficking, bonded labour, camel jockeys
etc. It is in cases like these where the
labour cannot be traced or is being
hidden by the agents raising doubts
of immoral trafficking ring.
The trafficking angle
People brought in from the interiors
of India to metropolitan cities to
work as domestic labour is also a
form of trafficking.
Most of the cases in which
Human Rights Law Network
(HRLN) has intervened; it has been
observed that the pattern or situation
has been such that it can easily be
classified as "trafficking". There is a
definite transportation, harbouring
and recruitment of the labour.
Maximum number of the complaints received during the research
was in context of money. Most families complained that the money their
wards were earning wasn't reaching
them at all as promised by the agents
of the placement agencies.
At first it appeared that the families were only concerned with their
wards' money. But the reality was that
the only way most of the families
back home knew that their girls were
doing fine was through the money
reaching them on a regular basis. The
only communication was through
money. Thus once the money stopped
flowing in, the families would sense
trouble and file a complaint.
Another problem that is generally
reported is that the girls go missing.
The agents inform the family members that their girl has left the destination place without informing anyone. In such cases there are two scenarios which have been observed,
that either the labour is taken by the
agent and employed with another
agency or is traded or trafficked for a
different purpose altogether. There is
also a situation when the girls run
away either because they have been
mistreated or because they aren't
allowed to go back home.
Need for regulations
It is important for us to have an
overview of the existing regulations
and legal provision for domestic
workers in our country to strategise
and move forward. The ILO is coming up with a convention, 'Decent
work for Domestic Workers', to set
labour standards for domestic/household workers at the International
Labour Conference in 2010.
The Unorganised Sector Workers'
Social Security Act, 2008, includes
domestic workers. The Act has provisions for identity cards, registration
facilities and other social security
benefits, but there is no mention
about regulation of work conditions
or working hours.
The national commission for
women along with a sub-committee
of trade unions and NGOs working
with domestic workers has undertaken to formulate legislation for domestic workers.
In July 2007, Shramajivee Mahila
Samity (SMS) and the Human Rights
Law Network filed a petition in the
Delhi High Court demanding police
action against domestic placement
agencies in Delhi. They submitted
complaints from 159 domestic workers who had been cheated and
abused by five agencies in the city.
During the court hearings, corrupt links between officials and agency owners became apparent. The
court demanded that the state government collaborate with civil society
to frame guidelines for regulating the
agencies. But the state's counsel, and
especially the Department of Labour,
has done nothing till now.
Also what is suggested is that the
government makes a provision for
police to keep a regular check on the
placement agencies that have been
given licences and ensure that there
are no illegal issues involved viz their
functioning. There should be a special officer appointed to deal with
these cases.
Conclusion
There is an urgent need to either
include domestic servants into preexisting laws or to devise new laws
which would provide them with provisions to cater to their basic rights
and needs. They need legal safeguards to protect their salaries, their
treatment at the hands of both the
placement agencies/agents and the
employers and from immoral
trafficking.
–The writers were interns
with the Anti-Trafficking
Initiative at HRLN
87
WORDS & IMAGES
Thorny journey to justice
Somehow off-the-track book, "Law & Life" by Justice VR Krishna Iyer
throws light on complex and multiple aspects of the
justice delivery system in India
Suresh Nautiyal
his time, Universal Law
Publishing Company has come
out with a nice book that
allows space for discussions on the
subjects and issues that generally
find space only in the legal academic
circles. And interestingly, the book
has been authored by no less a person than Justice (retd.) VR Krishna
Iyer. The volume carries articles on
different subjects - from law and life,
people's access to judicial process,
law and justice at the subordinate
courts, Indian justice system, arrears
of the court cases to capital punishment, tribal uplift and the rule of law,
police, decadence of democracy,
development and distributive strategy, system of elections in the country,
disasters of the urban development,
nuclear reactors, and Indian cricket.
And most importantly, it has an autobiographical essay.
Definitely, this volume is not
among those kind of publications for
which Universal is famous for. The
author himself has handpicked this
bouquet of articles to cater to different flavours of lawyers, laymen, and
judges. So to say, the collection contains articles on judges, judicial system, constitutional law, democracy,
arbitration, jurisprudence, Indian
and international socio-political topics and much more.
It makes a knowledgeable reading and engages the reader perfectly.
In fact, Justice Iyer is one of the versatile authors who have written most
of the aspects of law. His enlightened
idea on law and contemporary
jurisprudence is a path-making
source for the present and future
judicial system. Out of multifarious
activities of his life, he always works
out the time in writing for law and
techno-socio matters, which becomes
the flow of inspiration for the
lawyers, judges, and the common
people.
T
88
Title :
Author:
Publisher:
Price:
Law & Life
Justice VR
Krishna Iyer
Universal Law
Publishing
Company Pvt. Ltd.
Rs 295; Pp 228
BOOK REVIEW
Justice Iyer besides practicing
law, defended peasants and workers
against the exploitation of the feudal
lords who had full support of the
colonial regime. He even became an
important minister in Kerala after reorganisation of the states. During his
tenure as a judge at the Supreme
Court, Justice Iyer played an important role in an era of judicial activism,
public interest litigation, affirmative
action through courts and a wideranging exercise of judicial review
for which the Indian judiciary is
being hailed throughout the world.
In the very first essay in the book,
law and life, the author philosophical-
This volume is not among
those kind of publications
for which Universal is
famous for. The author
himself has handpicked
this bouquet of articles to
cater to different flavours
of lawyers, laymen, and
judges
ly points out that life, from its primitive days down to its international
amplitude of today, has marched
through the centuries according to
laws accepted at one time by each
community and rejected by it when it
has ceased to be an instrument of
progress. "What is life vis-à-vis law,
so that we may understand the social
dynamics which brings one into
fruitful relation with the other? The
role of the rule of law in our time and
society is an absorbing and exciting
study for lawyers and reformers … it
is clear that unless a community lives
under a rule of law it will tend to be
lawless, to have no rule, and that
means an anarchical way of subsisting. So the rule of law has to be there
to bind a community and to preserve, and maintain the rule of law
seems to be synonymous with the
maintenance of civilised existence."
At the end of the article, Justice Iyer
argues that the law must serve life.
In the next chapter, are judges a
rare class above public servants?, Justice
Iyer opines that we need judges who
are trained for the job, whose conduct can be freely criticised and is
subject to investigation by a judicial
performance commission; judges
who abandon wings, gowns and
unnecessary linguistic legalisms;
judges who welcome rather than
shun publicity for their activities.
In the chapter, people's access to
judicial process …, Justice Iyer elucidates that the basic structure of the
feudal Indian legal system with its
dated, diehard methodology, still
smacks of fossil features and colonial
curial culture. Its substantive and
procedural features are conditioned
by Victorian vintage values. Our
Constitution on the other hand, envisions a radiant socio-economic scenario and forward-looking forensic
infrastructure so that its creative mission may functionally fulfil the fun-
WORDS & IMAGES
damental rights and egalitarian aspirations of the vast population, which
is even now, governed by an arcane
establishment whose survival after
death is incongruous with the socialist secular democratic developmental order, which is our swaraj objective. The revolutionary tryst with
destiny 'we, the people of India'
made on gaining independence
remains a tragic illusion and irony of
jural magniloquence.
In the chapter, …some creative
mutations…, he candidly says that
corruption, in its various dimensions, has consumed the country's
integrity and ability; while in the
chapter … saga of justice, justices and
justicing, Justice Iyer laments that
arrears of pending cases are astronomical in number, eroding people's
credibility in the judiciary. Litigation
is now a terror and horror, never
final, ever perennial, bankrupting
both sides, shocking and shaming
socio-economic egalite.
In an important chapter like law
and justice at the subordinate court
level, he observes that … drafting of
law has become an art of making law
riddlesome and enigmatic. Plain language is somehow alien to statutory
diction. The courts, civil and criminal, are reputed to endow disposals
with long life, laxity, and needless
artificiality … on the whole, a revolutionary transformation in Law
India, procedurally and substantively is the urgent desideratum, if
access to justice through courts and
tribunals is to be factum of judicial
veracity. Justice, justices, and justicing are too fundamental to be a riddle wrapped in a mystery inside an
enigma. In the chapter, …some inconvenient truth, Justice Iyer says that …
the problems of justice, justicing and
justices are, as adapted to the judiciary, Parkinson's Law, Peter
Principle, pathological precipitancy
and pachydermic procrastination in
the judicial process, indifferent to
the appalling areas of cases at every
stage of the system. Money, big
money gains visa to the Everest
justice…
And so on so forth, the whole
book makes interesting reading.
And in the end, chapters like
poignant autobiographical page throw
some light on the lighter and personal side of his dedicated life. ■
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WORDS & IMAGES
Narrating evolution of Indian politics
In a succinct account suitably peppered with anecdotes, V Krishna Ananth's
book is an attempt to fill an important space -- a journalistic, non-academic
pedagogical narrative for students who wish to explore the contours of the
evolution of politics in independent India
Hormazd Mehta
he idea of India as a nation that
the mainstream media peddles
has its roots in the events that
have helped to shape the political
consciousness of the country since
the advent of the freedom struggle,
especially post independence. It is
telling to note that while the eighteen
years since liberalisation have come
to be valourised, there appears to be
a political vacuum concerning the
first forty-two years of Indian independence which came to be associated with Nehruvian socialism and
thus suitably stigmatised by the high
priests of the current dispensation.
It is in this context that the author,
V Krishna Ananth, posits this historiographical account of Indian politics.
In a succinct account suitably peppered with anecdotes, the author has
attempted to fill an important space - a journalistic, non-academic pedagogical narrative for students who
wish to explore the contours of the
evolution of politics in independent
India. While the book is not exhaustive on the tumultuous politics of a
postcolonial country racked by conflicting interests of various groups, it
does offer a very tantalising perspective on the dominant structures of
power which lorded over the country
post-Independence.
It would be inappropriate to state
this book propounds political determinism. The author's views and
scholarship from multiple vantage
points enlarge the perspectives on
offer as well as the intrigue that the
book generates in the reader - especially those treading their first steps
in this subject. The dominant structures of power and the institutions
they control exert their hegemonic
influence - a fact that explicitly shows
itself in the functioning of what constitutes the Indian State today.
India Since Independence… also
T
90
Title:
India Since
Independence:
Making Sense
of Indian Politics
Author:
V. Krishna Ananth
Publisher: Pearson Education,
New Delhi
Price:
Rs. 750/-
BOOK REVIEW
focuses its attention on the political
economy of India and the role that
the collusion of interests along with
the co-optation of power groups
played in keeping the hegemonic
powers of the Congress party in
power for the first quarter of a century at the centre. It also exposes the
convenience with which people and
issues are dealt with and disposed off
by the strong unitary state.
The working of the Congress party
is fleshed out with clarity and the
assertion of the other backward classes is also dealt with substantially.
However, it is a matter of disappointment that the rise of Dalit platforms
and communal carriages has not been
effectively dealt with. Each communal
party has used its own Herodotus to
redefine history as is best suited to its
vested interest and this perspective is
vital in informing the student about
the creation of a supposedly shared
experience. The rise of Dalit and adivasi political parties and platforms is
not discussed with sufficient content
to merit an understanding.
The author has dealt with the
idea of India as conceptualised during the freedom struggle and the
State that actually materialised at
length. This is very important if one
wishes to understand the current trajectory the Indian state and its governments are following in the economic and political spheres. If one is
to peruse the chapters which deal
with this, one will clearly realise
what Nehruvian socialism came to
embody. A conjuncture of hegemonic
agendas set the tone for the building
of a nation under Nehru and one that
would serve the interests of his loyalists and supporters with minimal
fuss. It helped Nehru no small
amount that his largest supporters
were the incipient Indian capitalist
classes which ensured that while
Nehru had his rhetoric, they had a
market to exploit.
It is in this frame that one should
view the working of the Indian state
in the current context of liberalisation. As the political leaders and
statesmen of today are not worthy of
comparison to Nehru and therefore
unable of introspection, one can only
hope that they witness the destruction caused by their actions and
ensure that the ruptures and fissures
in society do not become the sufficient condition for the disintegration
of a hastily cobbled country housing
elements ranging from the feudal to
the modern.
On a slightly different note, pricing the book lower would help bring
it within the reach of a larger number
of students who would definitely
find the book of immense interest as
an initiation into the world on Indian
politics.
–The reviewer is a student at the
Tata Institute of Social Sciences completing Masters in Development Studies
WORDS & IMAGES
udience-Citizens, the Media,
Public
Knowledge
and
Interpretative Practice, published by SAGE Publications India,
questions the bio-directional interplay between the interpretations of
the media and its target audience.
Specifically, the author, Ramaswami
Harindranath -- an Associate
Professor in the Media and
Communications Programme at the
School
of
Culture
and
Communication, The University of
Melbourne, Australia -- investigates
the correlation between how the
media is interpreted as well as mediated by the audience's 'understanding', 'social context', and the 'genre' of
media itself.
In nine heavily worded and references infused chapters, the author
outlines various theoretical frameworks where research and theory has
investigated the varying factors that
effect one's interpretation of the
media. Through a labyrinth of criticisms
and
linear
thought,
Harindranath presents a study conducted by him in an attempt to
bridge the gap in media and audience interpretation research which is
based on previous research and theory caveats.
The author thus proposes moving
away from ill-defined concepts and
holistic approaches, and turn to
explore those specific factors that
affect one's interpretation of the
media. In particular, the author provides a compelling argument for the
necessity to investigate the audience's underlying cognitive processes
(understanding), life experiences,
culture, and beliefs (social context),
and the actual content of the media
(genre).
The chapter on 'understanding'
concerns research and theories touching upon epistemological based
questions of the relationship between
'understanding' and factors such as
semantics, language, and cognition.
The chapter dedicated to 'social context' explores the context and culture
in which an individual lives and how
that context influences cognition and
in turn, media interpretation.
The chapter on 'genre' is dominated by the author's choice of using
film documentaries as the 'genre'
aspect of his theory. He questions
how audiences reach a conclusion
A
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Interpreting the Interpretation
The book presents interplay of concepts like 'social
context', 'understanding', and varying forms of 'genre'
when assessing the media-audience correlation.
Ramaswami Harindranath's book is an interesting
attempt to bridge the gap in media and audience
interpretation research
Rosie Rogers
Title:
Author:
Audience-Citizens
Ramaswami
Harindranath
Publisher: SAGE, New Delhi
Price:
Rs. 495, Pp. 275
BOOK REVIEW
that a documentary is believed to
represent the true world we live in, or
a fictional depiction of the world in
the context of how we understand it.
In this section, various factors that
influence the overall authenticity of a
'genre' are analysed including music,
photography, and the perception of
truth within a film documentary. The
author intertwines these three concepts in a strong and linear progression. The use of rhetorical questions
and real life applications keeps the
reader's mind active and engaged.
The author is constantly evaluating his own theory and thoughts, for
example he uses the 'Indian culture'
as a prime example of various subcultures existing within the overall
bracket of 'Indian'. These branches of
culture are based on factors such as
religion, language, and other social
constructs. The author thus recognises that when interpreting the media,
one cannot generalise that the 'understanding' of audiences within a single
'social context' is the same as that
throughout a labelled culture such as
'Indian' or 'Western'.
The philosophical and empirical
approach taken by the author results
in a well-defined research hypothesis
in which he aimed to 'compare the
interpretations of documentaries by
British and Indian audiences'. The
research carried out by the author
works on the assumption that those
who are geographically dissimilar
are also culturally dissimilar, with
the British and Indian as the chosen
audience populations.
However, differences were found
not between cultures, but within the
Indian culture. This qualitative
approach found that Indian nongraduates perceived the documentaries to be 99-100 percent factual
whilst the educated British and
Indian respondents had more sceptical views on the documentaries'
validity and often stated they had a
fictional skews. The author offers an
explanation with varying 'traditions'
and levels of education within the
Indian audience accounting for the
heterogeneous interpretations of the
documentaries.
Granted one would not take this
book on a holiday for a leisure reading, as the author admits, using 'theoretically complex arguments'.
However, these arguments are clear
and necessary to the overall message
that when analysing the media and
audience relationship, theorists
should consider a hermeneutic
approach, which is concentrated on
investigating meanings. This could
be done by asking questions of how
and why rather than if and when. In
an attempt to investigate the variety
of influences of the media, the book
encourages the reader to introspect
on issues of culture, self-identity, and
the effects of the media; questions
that we should all consider.
–The reviewer has been an intern
with the HRLN in New Delhi
91
WORDS & IMAGES
Capturing systemic
violence against Dalits
A powerful account of the plight of the 'untouchables', this
documentary exposes daily violence against Dalits. It is a
moving narrative of systemic violation of the fundamental
rights of the Dalits in a society where centuries old caste
prejudices continue determining social, economic and
political reality of millions Keya Advani
he Others is an hour-long documentary film, exploring the
marginalisation of Dalits
through the personal testimonies of
victims of caste-based violence.
Documenting numerous incidents of
oppression, the film demonstrates
how the State and the judiciary are
complicit in creating a systematic
structure of violence, discrimination
and oppression that targets Dalit
communities. Refuting the rhetoric of
urban, middleclass India that
casteism is a thing of the past, The
Others, produced by Harsh Dobhal
for HRLN and directed by Shahid
Jamal, showcases how anti-Dalit violence is all-pervasive and is not just
condoned, but is actively upheld by
educated, urbane populations.
Avoiding a flattened rhetoric of pure
oppression, however, the documentary also explores the avenues of
resistance that have emerged from
within Dalit communities against
upper-caste domination.
The film begins by locating Dalit
activism within an Ambedkarite ideology that actively rejects Hindu
gods such as Rama, Krishna, Vishnu,
Ganesha as well as Hindu ritualistic
practices like Pind Daan and instead,
embraces a philosophy of life rooted
in Bhaudhha-Dharma. It also emphasises the rejection of terms like
'Harijan' and their replacement by
the word 'Dalit', a word that encompasses not only oppression but also
a conscious resistance to that
oppression.
The documentary traverses
through victims' testimonies; it
explores how the same issue–violence against Dalits–is replicated in
each Indian state in different ways.
T
92
As we are exposed to story after
story, the role of the police in sanctioning anti-Dalit violence becomes
increasingly evident. For example, as
the camera surveys the broken and
charred remains of a house in
Haryana, its Dalit occupants testify
that their newly built home was
demolished by the upper-castes in
the village and their jewelry looted,
because their relative wealth was an
affront to the dominant caste-hierarchy. Meanwhile, the police stood by
and watched and have subsequently
refused to file an FIR. We meet a couple from a small village in Kerala
who were arrested by the police on
false charges, beaten brutally, and
now continue to be harassed on a
regular basis by police constables.
The residents of a village in
Rajasthan narrate how the uppercastes deliberately pollute their wells
and water sources by dumping
human excreta in them. Instead of
taking action, the police have told
them that they should filter and
drink the same water.
The virulent anti-Dalit mentality
of highly educated individuals had
become shockingly evident during
the Mandal Commission protests of
the 1990s. The Others explores the
Interspersed with the victims'
accounts, interviews with
lawyers and activists working
throughout the country, the
film makes it increasingly clear
that the judiciary is not playing
an adequate role in combating
caste violence
WORDS & IMAGES
Title:
The Others
(An HRLN film)
Duration:
One hour approx
Produced by: Harsh Dobhal
Directed by: Shahid Jamal
Supported by: European Union
pervasiveness of this mentality
amongst the educated elite today,
through interviews with Dalit students at some of the most prestigious
medical and management colleges in
Delhi. Dalit students are routinely
socially isolated, and experience
more severe forms of ragging than
non-Dalit students. They are often
targeted by members of the faculty
and told they should switch to 'less
demanding'
specialties
than
medicine and management. Their
testimonies make it clear that castebased discrimination is extremely
prominent amongst a young, urban,
educated populace.
The specific targeting of Dalit
women is often a symbolic act that
maintains caste hierarchy by making
the woman's body a site of violent
domination by an upper-caste perpetrator. The Others highlights this phenomenon through the testimonies of
victims of rape, especially in the
states of Haryana and Punjab. The
particularly horrific incident of the
rape of a young girl was made worse
by the police's attempt to make the
crime seem less heinous than it was,
by arguing that the victim was over
eighteen and therefore not a minor.
Although the documentary lacks an
analysis of the structures of power
that triply marginalise Dalit women
on account of their caste, class, as well
as their gender, it provides an insight
www.combatlaw.org
into the violence that Dalit women
face, on account of being women.
Interspersed with the victims'
accounts, interviews with lawyers
and activists working throughout the
country, the film makes it increasingly clear that the judiciary is not playing an adequate role in combating
caste violence. Only about three percent of the perpetrators of caste violence are convicted. As Dalits are
often excluded from systems of education, they are also excluded from
the judiciary. The result is a judicial
system that has taken neither adequate preventative nor curative measures to combat caste-based violence
and discrimination.
The Others is not, however, a mere
account of destitution and oppression. Rather, it also explores the multifarious forms of resistance that have
emerged in opposition to casteism. It
recounts forms of violent resistance,
as in the case of Nagpur in 2003
when women threw chilly powder
and beat to death an upper-caste
rapist, who they feared would be
acquitted by an inherently biased
judiciary. In another instance, in
Khairlanji in Maharashtra, violent
protests erupted after a Dalit family
was raped and beaten to death, forcing a statement of condemnation
from Ms. Sonia Gandhi. However,
not all protests have been violent. In
another region of Maharashtra, the
National Ambedkarite Guard (NAG)
mobilises Dalits and develops leadership amongst Dalit youth so that a
democratic, non-violent means of
dealing with atrocities against Dalits
becomes possible. In Southern
Kerala, a mass movement of Dalits
has taken a passive resistive
approach, asking only that upper
caste landlords do not illegally
appropriate their lands.
Although The Others lacks an analytical approach, it is a hard-hitting
account of the pervasiveness of castebased violence and discrimination in
the contemporary Indian context.
However, through the stories and
experiences of real people, it provides a clear and emotive account of
the routine and systematic violation
of the fundamental rights of a huge
section of India's population.
– The reviewer is with the
Women Justice Initiative at HRLN
93
OBITUARY
June 10, 1952–Oct 8, 2009
r K Balagopal, who stood in defiance before the State to uphold
human rights and made police
encounters look like acts of crime
rather than bravado, death came at
an early age of 57. The noted activistlawyer died of a heart attack at a private hospital in Hyderabad on
October 8, 2009.
A
brilliant
mathematician,
Balagopal gave up a career as a lecturer at the Kakatiya University in
Warangal district of Andhra Pradesh
to study law and become a human
rights lawyer. Since 1990 he took up
more than 200 cases of encounter
killings and founded the Human
Rights Forum in Andhra Pradesh in
1998. Known to be a hardcore
Marxist, Balagopal hated Maoist violence as much as he was against
police encounters. His public criticism of the acts of violence by
Maoists attracted severe criticism
from the Naxalites, but that did not
prevent him from fighting for the
rights of Maoists as well as the poor.
He broke away from the Andhra
Pradesh Civil Liberties Committee
(APCLC) after being associated with
it for many years because of the violent methods of the former CPI-ML
People's War.
In an article on moving the debate
beyond the terms set by the binaries
of violence and non-violence,
Balagopal had argued, "To say that
one should not be dogmatic about
violence may be morally a little
unsettling but it is a defensible position even without adopting a relativistic attitude towards the precious-
D
94
A Tribute to
people's advocate
Balagopal
ness of life or a casual attitude
towards one's moral responsibility
for injury caused in the course of
a struggle."
Balagopal served as a member of
the expert group on development
challenges in extremist affected areas,
set up by the Planning Commission
of India in 2008. For many, the manner in which he lived his life was as
important as what he said: "I am like
a moral compass that you turned to,
to check your own political orientation and direction."
His civil rights work acquired
great visibility in the early 80s, when
he held the post of general secretary
of the APCLC. During those years of
the 'long knives' and draconian laws,
Balagopal faced threats to his life,
was kidnapped by a vigilante group
widely believed to be linked to the
state police, arrested on a trumpedup charge of murdering a sub-inspector and so on. He survived all that
and during the end of that period,
around the mid-90s, began to write of
the importance of thinking about
rights violations in a broader and
more expansive context.
His extremely sharp analytical
articles that appeared regularly in
Economic and Political Weekly included issues ranging from the regime of
Indira Gandhi, reservations issue,
human rights violations from time to
time in different places, the Gujarat
riots, special economic zones, land
acquisition, to sub-categorisation of
scheduled castes in Andhra Pradesh,
the failure of talks between the YSR
government and the CPI-Maoists
and so on. His Telugu essay 'Cheekati
Konaalu' was a path-breaking one, in
which he directly questioned the violation of human rights by those who
claimed that they were working for a
radical revolution.
After the formation of Human
Rights Forum, Balagopal expanded
his activities and visited areas undergoing intense social turmoil in
Jammu and Kashmir, Gujarat, West
Bengal and Orissa. In Orissa, his factfinding teams visited Jagatsinghpur
district in respect of people affected
by proposed Posco steel plant and
Kandhamal district, which was
affected by communal and ethnic
clashes in 2007-2008.
In an interview with Janam Saxi,
Balagopal remarked, "The Indian
Constitution has had a habit, right
from its inception, to destroy democratic values completely in practice
without any recourse to laws. This
has grown very much recently. The
apparatus of the police is the chief
machinery for this destruction. The
duty to safeguard democratic values
from these limitations is a very
important duty. While performing
this duty it is of no use to ask the
question in this form: is there or is
there not at least a bourgeoisie type
of democracy."
And this is how perhaps
Balagopal would like to be remembered as one who was committed to
radical popular protest, who at all
times wished to examine the ethics of
such protests, wanting to constantly
test precept against practice as well
as the other way around. ■
OBITUARY
Remembering
Prabhash Joshi
Jul 15, 1937–Nov 5, 2009
he emergence of a new daily,
Jansatta, under Prabhash Joshi
was a significant occurrence in
eighties. Within a very short span of
time, Jansatta left behind several
Hindi newspapers. The most important thing the newspaper brought in
was a paradigm shift in the language
of Hindi journalism. It was refreshingly a language -- vox-populi -- and
Prabhash Joshi was a master craftsman. Whether writing on cricket or
politics, Joshi's idioms and terms left
the reader wondering and asking for
more.
In 1984, Prime Minister Indira
Gandhi was assassinated and Delhi
witnessed the worst ever massacre of
Sikhs in the streets. It was a horrific
moment for everybody who thought
whether India as a nation would survive at all. The human rights groups
were crying for justice for the families and kin of Sikhs killed in the massacre. In such a scenario, the newspapers of the Indian Express Group
including Jansatta provided them the
platform and carried stories about
their woes. The Group even started a
series of articles to save Kehar Singh
and Balwant Singh from hanging.
Besides, the media Group had
launched a campaign for probity in
public life and wholeheartedly supported the income tax raids on the
bigwig business houses. Soon after
VP Singh was shunted out of the
finance ministry, the income tax
sleuths raided the Indian Express
offices all over the country. Those
were days of Rajiv Gandhi's regime.
Along with Arun Shourie,
Prabhash Joshi spearheaded the campaign against Rajiv Gandhi's regime.
Post-Bofors, the Congress party used
media in a blatant manner to politically assassinate VP Singh who was
posing a threat to Rajiv Gandhi. In
the meanwhile, The Telegraph 'broke' a
T
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story of VP Singh's account in St
Kitts. It is a crude example of how
news was being created in the national capital with country's senior journalists sitting in the headquarters of
Congress party.
In the meanwhile Jansatta continued to be the voice of intelligentsia.
Prabhash Joshi was writing on politics, cricket and all the major issues
even as he created a team of young
scribes. Though Joshi himself was
anti-Mandal once upon a time, he had
the courage to publish articles in support of the recommendations of the
Mandal Commission as a majority of
writers in Jansatta came from the
Socialist leaning. A large number of
readers wrote angry mails to him condemning his position, yet he got them
published in the form of an article
named as jaat pe naa jao meri baat pe aao.
Joshi's finest hours in journalism
came in early nineties. After the
demolition of Babri Mosque on
December 6, 1992, Jansatta was perhaps the only paper which became
the biggest voice of the secular forces
apart from Vinod Mehta's The
Pioneer. Joshi wrote against the Sangh
Parivar and all those journalists who
joined the saffron brigade. Only a
few others had the courage to call
those who demolished the Babri
Mosque as 'terrorists'. Joshi felt that
RSS and other members of the Sangh
Parivar did not represent the Hindu
view of life. He wrote Hindu hone ka
dard which many of his media friends
describe as one of the finest books in
recent years on the growth of Hindu
fundamentalism.
In recent years, Prabhash Joshi
was more and more interacting with
communities. He had closely associated with late Prime Minister VP
Singh and social movements against
WTO, SEZs, land acquisitions and
media manipulations by the industrial houses. He had been travelling a
lot and his voice mattered a lot in
these matters. Among the present
day journalists he was the only hand
who could write with authority on
the issue of land acquisition. In fact,
despite the shrinking market of
Jansatta, it never compromised with
quality of content.
Prabhash Joshi considered himself
a puritan Brahmin but was concerned
about the growing communal situation in the country and continuous
assault on our natural resources. One
might have disagreed with his views
on Sanatan dharma and 'liberal' values
of Hinduism but as an editor he was
extraordinary. In his thoughts, Joshi
did not come close to his contemporary Rajendra Mathur, who was highly talented and much stronger on ideological side, yet Joshi was far more
ahead in interaction with people and
making Jansatta a 'people friendly'
newspaper. He was a journalist with a
mission despite the fact that many of
his contemporaries had compromised. While several journalists'
hatred grew against Dalits, Christians
and Muslims, Joshi never used vulgar
language like them.
In his last important intervention,
Joshi wrote against selling of space in
media. He has been touring all over
the country on the issue. He would
always write his column in Jansatta
and every Sunday people would wait
for his column. And definitely he
changed the way how cricket was
reported. His narration of cricket
matches were the finest as the
description had the sweet fragrance
of 'Malwa'. He was always in touch
with his roots and felt proud of it.
The biggest contribution of Joshi
to the Indian media is its secular
character, its freedom of ideas, creation of a few professionals who are
now everywhere in media and developing a language which changed the
spectrum of Hindi media and forced
those in power to give respect to vernacular viewpoints and most importantly in the age of marketing where
everything is a product fixed by the
market.
–Vidya Bhushan Rawat, the
author, is an activist-journalist
95
OBITUARY
Prof Iqbal Ansari
1935–Oct 13, 2009
n evening of October 11, 2009,
Prof Iqbal A Ansari was sitting
next to me in a meeting in Delhi, at
that time I had no clue that I will not
be able to meet him again. In fact, it's
still unbelievable to me that he is no
more among us. His untimely death
left most of us bewildered. It is an
irreparable loss for human and civil
rights' movements in India. Prof.
Ansari, who was always at the forefront of the human rights and civil
movements for more than two
decades left this world on October 13,
2009 following a heart attack.
My association with Prof Ansari is
not very long and dates back to 2007,
when I assisted him to organise a
consultation meeting on 'Towards
Riot & Terror Free India' in collaboration with the Inter Community Peace
Initiative (ICPI) in Delhi. After that, I
interacted with Ansari on various
occasions and issues, mostly through
phone and internet. He was very
prompt in his responses. Whatever I
got to know about him through my
short interactions and his works, one
thing that really influenced me was
his unmatched commitment for protection of civil liberties and advancement of human rights in India. He
was committed for the cause up to
the level of passion.
He was one of the most visible
civil liberties' activists in India taking
up a variety of issues -- from communalism, religious freedom and communal harmony to minority rights.
From being a teacher of English literature turned into a full time human
rights' activist, Prof Ansari along
with other well-known civil libertarians like VM Tarkunde and Justice
Rajendra Sachchar, championed for
O
A tireless defender
of human rights
the protection of civil rights in India.
Born in 1935, Iqbal A Ansari
served as a teacher of English at the
Aligarh Muslim University, Aligarh
(AMU) for 33 years and retired as
professor of English in 1995. He was
also a visiting faculty at Centre for
Federal Studies, Jamia Hamdard
(2001-2003) and Jamia Millia Islamia,
New Delhi (2003-2004). Prof Ansari
was associated closely with several
international and national human
rights organisations in different
capacities. He was also member of
Amnesty International, National
Council member of Peoples' Union
for Civil Liberties (PUCL), vice president of Citizens for Democracy
(CFD) and general secretary of
Minorities' Council. Most recently, he
was active with the Citizens'
Initiative for Peace, a newly formed
group comprising people like Justice
Rajendra Sachchar, Prof Randhir
Singh, Kuldip Naiyyar, Swami
Agnivesh, Nanadani Sunder and
Kavita Srivastava. He was also
editor of the quarterly bulletin,
Human Rights Today published from
New Delhi.
Prof Ansari was a prolific writer
and his articles found spaces in most
of national English dailies. He had
written extensively on issues related
to human rights, minorities and prevention and resolution of inter-community conflicts. Many of his publications include Political Representation
of Muslims in India (2006), Readings
on Minorities: Perspectives and
Documents, Vol I & II (1196), Vol III
(2002); Communal Riots: The State and
Law in India (1997); Human Rights in
India: Some Issues (1998); Muslim
Situation in India (1989); and Uses of
English (1978). Before his sad demise,
he was working on the issue of religious freedom and was involved in
compiling a book on it.
Prof Ansari, in his capacity as an
active social worker, had crisscrossed the country to advance
human rights and to expose their violations besides the illegal activities of
both the state and non-state perpetrators. It was Prof. Anasri's keen interest and constant efforts in the matters
related to victims of communal violence in Hashimpura and Maliyana
areas of Uttar Pradesh which resulted in the transfer of cases from UP to
Delhi. Nonetheless, he made a
remarkable intervention in the form
of a critical analysis of the proposed
Communal Violence (Prevention,
Control and Rehabilitation of
Victims) Bill, 2005. One of his last but
significant contributions to the protection and advancement of civil liberties in India was his intervention on
Supreme Court judge Justice
Markandeya Katju's remarks on
beard growing. He personally wrote
to him and argued the matter.
Prof Iqbal Ansari was a selfless
intellectual, tireless human rights'
defender and a great human being. It
is a harsh reality that he is no more
amongst us but his legacy in terms of
his works and brave struggles will
continue to inspire us to keep on our
struggle for the establishment of a
just and equitable society. Our real
tribute and homage to him will be to
carry forward his pioneering work
and celebrate his greatness.
–Mahtab Alam, the author,
is a Delhi-based civil
rights activist
Printed and published by Socio Legal Information Centre having its office at 576, Masjid Road, Jangpura,
New Delhi-110014, Printed at Shivam Sundaram, E-9 Green Park Extension, New Delhi-110016
96

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