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Atrocities against Dalits : Retrospect and Prospect

20 December 2009 9,387 views No Comment

Atrocities 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 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 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 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 three-fourths 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 caste-based 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 socio-economic 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 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 post-Independence 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 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-with-untouchability”, the latter part (i.e., untouchability) being directed against the castes in the lowest layer.

The colonial era and the post-Independence decades have no doubt introduced changes, but have not fundamentally altered the four-layer 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 numerically 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 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 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.

(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 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 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 pre-Ambedkar, pre-Independence, pre-Constitution 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, universities 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 pre-existing reservation rules, including relegation of SCs and STs from the first and third positions in the pre-1977 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 process, 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 non-tribals 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 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 pre-Constitution 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 Mahatma-Babasaheb 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.
  • l 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 (Offences) Act, 1955 w.e.f. from 01-06-1955, 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 post-independence 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 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 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.

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, inter-community 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,
  • 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
  • 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 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 murder 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 charge sheeted in courts.

Table (1) shows the percentages of disposal of cases in courts.

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 trial- completed 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 %

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 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 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 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 prima-facie 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).

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 non-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 discriminatory 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 worthy 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 exclusively 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 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 strengthening 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 initiated 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 pre-court 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 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 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 self-confidence 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 help 2

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 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 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

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