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THE PERSISTENCE OF CASTE
ANTI-ATROCITY LAW
MITIGATION AND ITS MALCONTENTS

Anand Teltumbde

The Constitution of India, besides guaranteeing to all citizens basic civil and political rights and fundamental freedoms, has special provisions directed at the practice of caste discrimination over a range of situations, from access to public places to state employment to admission at all educational institutions. All forms of untouchability and forced labour stand abolished. There are also positive duties imposed on the state to redress imbalances due to past injustices against untouchables: reservations and 'beneficial discrimination', or simply affirmative action, come under these. Indeed, in its governance, the state is enjoined to 'promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes (SCs) and the Scheduled Tribes (STs), and to protect them from social injustice and all forms of exploitation.' All this is however limited by Article 355, which states that the efficiency of the administration is not to be sacrificed in the implementation of these provisions.

To bolster these constitutional measures, India has passed several laws:

•The Protection of Civil Rights (Anti-Untouchability) Act, 1955, punishes offences that amount to the observance of untouchability.

•The Bonded Labour (Abolition) Act, 1976, aims at the release of bonded labourers (invariably dalits and adivasis, working in slave-like conditions in order to pay off a debt to a privileged caste employer) by cancelling any outstanding debt and prohibiting the creation of new bondage agreements.

•The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, known also as the PoA Act, recognizes eighteen crimes as atrocities if committed against a dalit or an adivasi; among these are: violence against women, dispossession of land, mischief by fire and destruction of property. Indian Penal Code (IPC) offences carrying a punishment of ten years imprisonment are punishable with imprisonment for life if committed against those the Act provides for. In 1995, Rules were framed under the Act to strengthen the investigation process and make provision for the payment of compensation.

•The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993. A special law was considered necessary to deal with the most distressing discrimination based on work and descent. Officially, there are an estimated 800,000 people, mainly women, who are engaged in cleaning dry latrines using the most primitive methods. The law itself describes this as a 'dehumanizing practice' and is intended to make it obligatory to convert dry latrines into water-seal latrines. For the implementation of the Act, the National Commission for Safai Karamcharis, instituted in 1997 to review the implementation of the Act, found in its report of that year that manual scavengers are 'totally cut off from the mainstream of progress and are still subjected to the worst kind of oppression and indignities'. What is more pathetic is the fact that manual scavenging is still largely a hereditary occupation. Safai Karamcharis are no doubt the most oppressed and disadvantaged section of the population. There is unfortunate evidence that manual scavengers are considered untouchable by other untouchables.

On paper, this is certainly an impressive list of state measures, some of which have definitely impacted the practice of untouchability. However, this falls far short of what is required to deal with the magnitude of the problem. Caste-based discrimination continues to be pervasive and frequently manifests as an ugly atrocity. A recent study undertaken in this regard notes:

Like other institutions, caste and untouchability-based discrimination in the Indian society has undergone change. The practice of untouchability and resultant discrimination has reduced in the public sphere, like panchayat offices, schools, use of public roads, public transport, health and medical services, services of shops (for buying goods) and services rendered by the tailor, barber, eating places and tea shops in large villages and urban areas. But even here discrimination in various subtle forms prevail.

Coming nearly four decades after the Constitution was established, the PoA Act has been the most important measure with regard to atrocities on dalits. Unlike its predecessor, the 1955 Civil Rights Act, which only concerned itself with superficial humiliations such as verbal abuse, the PoA Act is a tacit acknowledgement by the state that caste relations are defined by violence, both incidental and systemic. The Act was promulgated with extremely radical and noble objectives:

Despite various measures to improve the socio-economic conditions of the Scheduled Castes and Scheduled Tribes, they remained vulnerable. They are denied a number of civil rights. They are subjected to various offences - indignities, humiliation and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons. . . . When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorize them . . . Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste person eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955, and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special legislation to check and deter crimes against them committed by non-Scheduled Cast; and non-Scheduled Tribes has, therefore, become necessary.

The PoA Act proved to be a pioneer in many ways. Providing severe punitive action not only to the perpetrators of atrocities but also to persons in the bureaucracy guilty of errors of omission and commission in abetting them, it gave dalits vital ammunition in the form of legal redress to violence. But, although it gained a quick reputation as an Act with teeth because of its stringent provisions, and appeared to be a powerful and precise weapon, in practice the Act has suffered from a near-complete failure in implementation.

The essential obstacles to implementation come at the level of the lowest rungs of the police and the bureaucracy that form the primary mode of interaction between the state and society in rural areas. Policemen have displayed a consistent unwillingness to register offences under the Act, a reluctance that stems from prejudice. There is also gross ignorance in the enforcement machinery as revealed by a 1999 study, which found nearly a quarter of government officials responsible for enforcing the Act unaware of its very existence. Even after overcoming these initial hurdles, the complainant faces much bigger obstacles during investigation at the lower tiers of the judicial system. As such, the results, right from the beginning, have been poor. In 1998, out of 147,000 PoA cases pending in the courts, only 31,011 had been brought to trial.

Even if cases do make it to trial, the Act suffers from abysmal rates of conviction. In 2010, a report prepared by the 'National Coalition for Strengthening PoA Act', taking stock of twenty years of this law, cited NCRB's 'Crime in India' data to prove that not much had changed. According to this report, of the 457,983 cases registered between 1997 and 2007 trial was completed on 317,492 cases, of which convictions were handed in 140,491 cases. The average conviction rate was a poor 30.3 percent. In the same period, the conviction rate for cases registered under the Indian Penal Code was over 42 percent.

This is a marked improvement on the data provided by the Ministry of Social Justice and Empowerment (MSIE) report, where, of the total PoA cases filed in 2002, only 21.72 percent were disposed of, and of these, a mere 2.31 percent resulted in conviction. Table  provided the latest data on crimes registered under the PoA Act against SCs from 2004 and 2008.

Table shows that barring a minor decrease in the rate of murder, there has been a significant rise in recorded crimes against dalits from 2004 to 2008 under various categories. Overall, there has been a 25 percent rise in crime against dalits during this five year period. While judicial bias against dalits is rampant, as is frequently borne out in court verdicts, it is just one cause for the low conviction rate. Judicial delays have also significantly marred the Act’s effectiveness. The long lapse between the registry of a case and the actual trial often causes witnesses, usually poor and vulnerable to intimidation from aggressors, to turn hostile, thus weakening the case. The long wait also results in many plaintiffs losing interest. Read together with a strong tendency not to register crimes under this Act. This rising trend becomes quite alarming.

There is also no monitoring system in place to ensure the Act’s effective implementation. The ministry concerned produces sketchy annual reports that do not even appear to check the varacity of data. Then there are the National Commissions for SCs and STs (NCSC and NCST), which though not statutorily mandated, appears to monitor the implementation of the Act but cannot effectively do so because of their lack of resources and motivation. Designed to be powerless, they receive and investigate complaints under their powers as civil courts but cannot enforce their findings commissions, it may be said to their credit, have been documenting lacunae and making recommendations for action to the central government, but there is little heed paid, for the centre passes the blame to the states.

Much of the failure of the Act in meeting its objectives is attributed to prejudice in the implementing machinery, viz., the police, the prosecution and the judiciary. What is missed is the state’s fundamental lapse in not creating the structures stipulated in the Act which could curb many of these prejudices. The PoA Act rules of 1995 mandate each state government to constitute a panel of senior advocates from which a victim could choose his pleader, to nominate nodal PoA Act officers for each district at the level of Secretary to the State Government and to constitute special courts implementation structure are not in place in most states even today.

Although the Act mandated the creation of special courts precisely to circumvent the problem of judicial delay, very few states have actually complied. Existing sessions or district courts have been notified as special courts, while still being asked to process their usual case loads. Since many other Acts also require the creation of special courts, the sessions courts are often overloaded with a number of different kinds of 'priority' cases, ensuring that none of these receives the attention they are mandated to receive.

The provision of special courts was also meant to make the judicial process easily accessible to dalits and adivasis. Instead, with sessions courts doing double duty as special courts, a false impression has been created that an aggrieved dalit or adivasi can approach the court for justice directly without going through the familiar but hostile channel of the local police and the judiciary. The Act does not give powers to such courts for the direct admission of complaints for a designated special court cannot take cognizance of an offence without its being committed to it by a magistrate. A dalit's complaint must therefore go through the course established under India's Criminal Procedure Code, which has been a major hurdle for dalits in getting justice.

The PoA Act has addressed the dispensation of justice in a fairly detailed manner, but what it has failed to deal with is the problem of 'rehabilitation'. It makes mention of rehabilitation but has no specifics to address it with. The very premise of the Act is that victims of atrocities need special provisions unlike victims of other crimes. The victims of atrocities and their families need financial and other logistical support to make them economically self-reliant, without their having to seek wages or employment from the very people who abuse and oppress them. Also, it would be the duty of the state to immediately take over the educational needs of the children of such victims and provide for the cost of their food and maintenance. However, the Act does not extend any consideration to such aspects.