Khairlanji verdict Whither the Atrocity Act?
Khairlanji — undoubtedly is one of the worst cases of caste atrocity in the history of post-independent 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 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 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.”
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 ill-founded 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 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 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 non-material 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.
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 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.
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 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.
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 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’