JASDEEP KAUR
LLM student– USLLS
IP University Dwarka
Contact: 8010017114, 9821378225
advjadeepkaur@gmail.com
ATROCITIES ON DALITS:- Non implementation of laws and procedures
Abstract
This paper tries to analyses the increasing and perpetuating atrocities on the dalits which leads to gross violation of Human Rights a larger context. The first part of this paper is an attempt identify the meaning of who are dalits what are atrocities, second part of this paper is an attempt to explain the types of atrocities and causes of atrocities third part of the paper is an attempt to explain the reasons for perpetuating atrocities despite the various safeguards provided under Constitution and legislations enacted by the Parliament in different period. Fourth part analyses of the concern for protecting the rights and dignity of Dalits which has been a major challenge even after India’s independence. Despite special protective laws such as prevention of Prevention of Civil Rights Act 1955 and Prevention of Atrocities Act, 1989 and their implementation for 28 years, international conventions ,continuous victimization of caste-based atrocities. Though most of such incidents go often unreported, even the cases registered under these laws also end in acquittal. This scenario on the one hand raises doubts on the will and commitment of the state, particularly its law-enforcing machinery, necessitates the need for understanding the various factors that lead to barbaric situation of most exploited section of Indian society eg: dalits. The fifth part of this paper is an analysis of gap between various legislations judiciary and implementation of laws. Sixth part of the paper is findings and suggestions. Seventh part of the paper is conclusion.
Objectives of the Paper :
• To describe the present situation of discrimination against scheduled caste
• To describe the present statues of atrocities against scheduled caste
• To analysis the gap between various legislations judiciary and implementation of laws.
• To analysis the various laws and provisions to prevent atrocities.
• To analysis the Reasons for acquittal of accused
Methodology :
The descriptive nature of this paper ; basically uses published secondary data related to study topic also takes reference of useful website links , books and bare acts.
Part 1
Introduction
“I do not want to be reborn, but if I am reborn, I wish that I should be born as a Harijan, as an untouchable, so that I may lead a continuous struggle, a lifelong struggle against the oppressions and indignities that have been heaped upon these classes of people”. -Mahatma Gandhi
The history of human rights is a history of people’s struggle for liberty and for enforcement of fundamental rights. In every sphere of life, the human rights are being violated one or the form. Voices of the blacks are suppressed by white in terms of racism , most of the economically oppressed people are suppressed by industrialist , higher caste suppression on lower caste,. As we moved towards 21st century, these human rights violations have been translated into programs of social action. Yet dictatorial , conflicts , disagreements and difference of opinion have periodically crushed the very foundation of rights acquired across the centuries, and replaced old conceptions with new approaches to human rights. Human rights is a dynamic concept and endeavors which has been adopted throughout the world as a need of an hour. New thoughts arise from the womb of the old. Human rights can be defined as those rights, which are inherent in human nature and without which human beings cannot live with dignity as human beings. Right to equality is given by our constitution. Each violation of human rights, wherever it occurs is a great threat to the welfare and dignity of the human civilization . “Since human rights and fundamental freedom are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible”. It is necessary to emphasize those civil-political rights and economic-social rights are intimately related. Both these sets of rights are complementary to each other, neither being superior nor subordinate to the other. Together they form the core of the essential human rights inherent in every human being.
Dalits
Dalits, literally meaning “broken people” or “oppressed” in Sanskrit, are the lowest members of the Hindu caste system in India. Hindu hierarchical class structure with roots in India dating back thousands of years . In descending order, the caste system is considered of Brahmins (priests), Kshyatriyas (warriors), Vaisyas (farmers), Shudras (laborer-artisans), and the Dalits, who are considered so polluted they are beyond caste. Dalits status was associated with occupations regarded as ritually impure, such as leatherwork or butchering, or removal of rubbish, animal carcasses and human waste. These activities were considered to be polluting to the individual and this pollution was considered contagious. The term was repurposed in nineteenth-century Sanskrit to mean a person not belonging to one of the four Brahminic castes. Dalits were excluded from the four-fold Varna system and formed the unmentioned fifth varna which was also called Panchama. Dalits were commonly banned from full participation in Indian social life. They were physically segregated from the surrounding community. They have historically occupied the lowest status in the Indian society. The Indian Government officially calls them “Scheduled Castes”. Scheduled means they are on a government schedule that entitles them to certain protections and affirmative action.
Dalits officially known as “Scheduled Castes” constitute 1/6th of India’s population. A central feature of discrimination is the concept of untouchability based on the notion that certain caste groups are considered impure and polluting to other caste groups, leading to social ostracism, economic exploitation and denial of human dignity. Despite Article 17 of the Constitution which outlaws the practice of untouchability amongst other legal provisions and affirmative action schemes, they continue to face many forms of untouchability practices as well as social, economic and institutional deprivations. “Since the caste system attains its sanctity in religious writings, emancipation from the rigid classification has been difficult to achieve. The consequences of these traditional restrictions in the past are to be seen, even today.”
The Indian Constitution vide Article 15 lays down that no citizen shall be subjected to any disability or restriction on the grounds of religion, race, caste, sex or place of birth. It also guarantees that every citizen shall have equality of status and opportunity.
The problems of social inequality and class divide in our country need to be recognized and resolved by all available democratic measures including special legislations to deal with particular acts constituting offences against such weaker sections of the society.
ATROCITIES FACED BY DALITS
The term atrocity has not been defined in law. However, atrocity has been made punishable under the Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. The word atrocity is being used in India in connection with Scheduled Castes and Scheduled Tribes who are subjected to violence and brutalities by any person who is not a member of a Scheduled Castes and Scheduled Tribes. The term atrocities is generally understood in terms of physical violence involving looting, usurpation, appropriation, killing etc.
Dalits face different forms of discrimination in rural and in urban areas. In rural areas, some of the most common practices include: denial of entry into non-Dalit houses, prohibition against food sharing, denial of entry into places of worship, denial of access to water facilities and denial of barber services. Dalits are also disenfranchised, beaten, abused and even sometimes killed for voting or contesting elections. In schools, Dalit children are stigmatized with instances of children being asked to clean toilets and to eat separately.
In urban areas, Dalits face persistent forms of discrimination such as denial of health services, safe drinking water, education and adequate housing. There is still reluctance to rent out houses to Dalits merely because of their identity, even if they are economically prosperous and well educated. Dalits are known to be paid less, ordered to do the most menial work, and rarely promoted, except in the government jobs reserved for them.
Dalits face persistent discrimination and serious crimes are committed against them oscillating from abuse on caste name, murders, rapes, arson, social and economic boycotts, naked parading of women, force to drink urine. As per Crime Statistics of India, every 18 minutes a crime is committed against SCs; every day 27 atrocities against them, (3 rapes, 11 assaults and 13 murders), every week 5 of their homes or possessions burnt and 6 persons kidnapped or abducted. Dalit women “face targeted violence, even rape and death, from state actors and powerful members of dominant castes who employ these methods to inflict political lessons and crush dissent within the community”.
Part 2
Types of Atrocities
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, enacted in 1989, covers many problems in india. The act is designed to prevent crime against sc’s and st’s and penalize those who are held liable for such activities, the act has provisions for establishment of special courts which are also known as fast track courts for the trial of such offenses, and provide for victim relief compensation protection and rehabilitation. There are various offenses made punishable by the act provides a glimpse into the retaliatory or customarily degrading treatment Dalits are receiving from past so many centuries. The offenses include forcing members of a scheduled caste or scheduled tribe to drink or eat any inedible or obnoxious substance; parading them naked or with painted face or body;, waste matter, carcasses or any other obnoxious substance in their premises or neighborhood; forcibly removing their clothes and interfering with their rights to land; dumping excreta compelling a member of a scheduled caste or scheduled tribe into forms of forced or bonded labor; corrupting or fouling the water of any spring, reservoir or any other source ordinarily used by scheduled castes or scheduled tribes; denying right of passage to a place of public resort; and using a position of dominance to exploit a scheduled caste or scheduled tribe woman sexually amongst others. Covered under section 3 of act.
There has been an increase in the number and intensity of the cases of atrocities registered and sometimes unregistered by the police under the sc st act in our country. Abuses committed against Scheduled Castes are numerous and have taken many different forms, they include (but are not limited to):
a) Social discrimination
b) Beating, slashing and other forms of torture
c) Arson the burning of Scheduled Castes communities and their homes
d) Violence against women
e) Bonded labour
f) Denial of rights, especially land rights
g) Police abuses against Scheduled Castes and Scheduled Tribes and custodial abuse
Causes of Atrocities
The scheduled caste are bearing atrocities from past so many centuries the causes of atrocities are mentioned below:
Caste Animosity
The age-old caste practice of untouchability and inhumane behaviour are at the root of the atrocities against Scheduled Castes and Scheduled Tribes. The caste domination is one of the reasons due to which incidents of atrocities go increasing day by day. Many cases remain unregistered, their voices are pressed either through the mighty higher caste or by the State instrumentalities by their inaction , when they try to take action against the prejudices and derogatory treatment meted out to them.
Illiteracy and Poverty
Maximum number of Scheduled Castes are illiterate due to which they are unaware of their rights. Due to illiteracy they remain unawareness because of which they are unable to approach the appropriate forum for the protection and there rights get infringed. This actively encourages atrocities and increase in number of victims . Even if they are aware of there rights they are unable to approach the court because they are having limited resources and money. The upper caste hire them for the work due to which they remain dependent on them Poverty in matters of livelihood and work.
Police and Scheduled Castes
The police being an instrument of the State have the responsibility to protect all the citizens. But the police do not to protect the certain communities such as Scheduled Castes and scheduled tribes rather in many cases it infringes the rights of Scheduled Castes and scheduled tribes by allowing themselves to be prejudiced by the prevailing own caste biases in the society. Police is Corruption and biases. Unreported of atrocities cases is a very common phenomenon .“Police resort to various techniques to discourage Scheduled Castes and Scheduled Tribes for not reporting crime against them and , to dilute the seriousness of the violence, to protect the accused persons from arrest and prosecution and, in many cases where gravity of offence is very intense, the police themselves inflict violence.” So it is sad that the police , who are entrusted with the duty to protect and safeguard the Scheduled Castes, commits atrocities on them and infringe there rights.
Part 3
Reasons for perpetuating atrocities despite the various safeguards provided under Constitution and legislations enacted by the Parliament in different period
Special social enactments have come into force from time to time for SC/STs in order to uphold the safeguard and constitutional mandate the rights of these sections of the society. The major legal enactments are:
(i) The Protection of Civil Rights Act, 1955
(ii) The Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989
The Protection of Civil Rights Act, 1955 was enacted in furtherance of Article 17 of the constitution to abolish untouchability and its practice in any form. The Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act, 1989 was brought into in order to check and deter crimes against persons belonging to SCs. These enactments have extended the positive discrimination in favour of SCs to the field of criminal law in as much as they prescribe penalties that are more stringent than the corresponding offences under Indian penal code (IPC) and other laws. Special Courts have been established in major states for speedy trial of cases registered exclusively under these Acts. Despite these legislatures, Scheduled Castes are persistently facing various kinds of atrocities in our country, so it is necessary there must be strict implementation of these laws and police officers refusing to implement such laws must be punished. The police resort to various machination to discourage Schedule Castes and Scheduled Tribes persons from registering their cases, to dilute the seriousness of the violence, to shield the accused person from arrests and prosecution. In most states, the rate of registration of crimes against dalits (Scheduled Castes and Scheduled Tribes) is not very high. 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. With a view to presenting lower crime rates in the district, under-reporting of information is done at the district headquarters, which gets further diluted at the State and National level” A bigger obstacle faces victims who actually manage to lodge a complaint is failure to follow through with cases is alarmingly apparent at the lowest echelons of the judicial system.
The Police is the first agency in the criminal justice system and with the registering of an FIR following any incidence of violence the criminal justice system is set in motion. But unfortunately the police still decide which complaints to register and which one to leave. Unless pressurized through court directions, through interventions by movements and NGOs or through media highlighting the case, frequently the police try not to register an FIR in cases of atrocities against dalits. “Even in respect of heinous crimes the police machinery in many States has been deliberately avoiding SCs and STs (Prevention of Atrocities) Act, 1989.”
Part 4
Social justice and equality are complementary to each other so that both should maintain their vitality. The constitution commands justice liberty, equality and fraternity as supreme values to usher in the egalitarian social economic and political democracy. Social justice equality and dignity of person are corner stone of social democracy. The concept of social justice which the democracy of India engrafted consists of diverse principles essential for the orderly growth and development of personality of every citizen. Rule of law therefore, is a potent instrument of social justice to bring about equality in results. The Hon’ble Supreme Court of India in M. Najraj v. Union of India observed that social justice is one of the sub-divisions of the concept of justice. It is concerned with the distribution of benefits and burdens throughout a society as it results from social institutions, property system public organization etc. The concept of social justice is not, limited only to directive principles. There can be no justice without equality. The constitution of India guarantees the fundamental right to equality before the law on all persons. Great social injustice resulted from treating sections of Hindu community as untouchable and therefore constitution of India abolished untouchability. Article 25 permitted the state to make any law providing for throwing open all public Hindu religions temple to untouchables. Despite special protective laws as discussed in part 3, there is continuous victimization of caste-based atrocities. Though most of such incidents go often unreported, even the cases registered under these laws also end in acquittal. “I am afraid that the disposal of the cases is low; the rate of conviction is low. Therefore, it is fair to conclude that the feeling amongst the Scheduled Castes and the Schedule Tribes that all these laws and all these statements, all these pronouncements have really not brought any relief to them. That feeling is running high and I cannot but say that feeling is justified.”[ This scenario on the one hand raises doubts on the will and commitment of the state, particularly its law-enforcing machinery. The major reasons for the non- implementation of Constitutional legislations enacted to protect the interests of Schedule Castes are to be found in continuing belief and faith of the high caste Hindus in the sanctity of institution of caste system. Amongst other reasons for failure includes seeking justice through the special laws which is not an easy task, since it demands adherence to number of procedures on the part of the victims, accused, police, the special public prosecutor and others concerned at every stage of the case, which is often turn out to be very costly, tiresome and time-consuming, particularly for the victims. Invariably, it is during this time the accused indulges in number of mischievous activities including bribing the police, tampering the evidences, pursuing the victims for an out of court settlement of the case and threatening the victims and their witnesses etc. And if they have to pursue the case despite all these, it would be at cost of their means of sustenance, dignity, peaceful living, and sometimes their life itself.
The fight against atrocities against schedule castes is larger and more complex challenge. It requires more of statesmanship and good governance. It demands legislative and administrative reforms to plug loopholes in the law and the criminal justice administration. In this regard, there is a need for reforms of the police and the prosecution machinery which needs to be identified as an essential step.
Critical analysis of sc/st prevention of atrocities act 2016
Advantages
1) The act has given special power to the state commissions to grant compensation to the victims of the atrocities.
2)Establishment of Exclusive Special Courts and specification of Exclusive Special Public Prosecutors also, to exclusively try the offences under the PoA Act to enable speedy and expeditious disposal of cases.
3) Power of Special Courts and Exclusive Special Courts, to take direct cognizance of offence and as far as possible, completion of trial of the case within two months, from the date of filing of the charge sheet.
4) The special public prosecutor for the victims of the atrocities on the expenses of the state.
5) The presumption to the offences If the accused was acquainted with the victim or his family, the court will presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise.
6) The act has no over riding effect.
7) There is no bail under section 438 criminal procedure code.
8) All the sections of indian penal code such as 354, 354 a,b,c,d , 509 , 503, 376 etc are covered under new act for compensation.
Disadvantages
1) Addition of certain IPC offences like hurt, grievous hurt, intimidation, kidnapping etc., attracting less than ten years of imprisonment, committed against members of Scheduled Caste/Scheduled Tribe, as offences punishable under the PoA Act. Presently, only those offences listed in IPC as attracting punishment of 10 years or more and committed on members of Scheduled Caste/Scheduled Tribe are accepted as offences falling under the PoA Act.
2) No clear provisions and rules for granting of compensation to the victims of atrocities.
3) Due to fast trial courts many witnesses remain unexamined by the court. Similarly, Madras High Court in M. Kathiresam v. State of Tamil Nadu held that investigation conducted by an officer other than a DSP is improper and bad in law. Proceedings based on such an investigation are required to be quashed. The Courts without taking into consideration the inadequacies of the State, have been punishing SC/STs for the same. Shri Pravin Rashtrapal, Member of Parliament rightly pointed out that we do not have sufficient officers at that level. His statement is supported by the Annul Report of 2005-2006 of Ministry of Home Affairs . According to which out of the total posts sanction by the government under Indian Police Service (IPS) more than 15 percent of the posts are vacant. This basically means that there is one IPS officer of 77,000 SC/STs. Hence, there should be an amendment to this rule.
4) The limitation for appeal against conviction is defined 90 days, but no limitation for appeal against acquittal prescribed under the act even high courts get confused about limitation for appeal against acquittal.
5) No provision for most of indian penal code sections 427 , 451, 452 etc have no punishment or compensation provisions.
6) The public witnesses are mandatory but if there is crime infornt of public all are high caste or more friendly with accused then how will case be registered under the act , the act remain salient on it.
7) Despite of strict provisions under the act the court grant anticipatory bail to the accused.
Part 5
The lack of political will, and manipulation by vested interests in administration delays the process of combating the challenge of prevention of atrocities. Every constitutional order provides for modifications in law to enable the state to face challenges to its unity and integrity and the security of its citizens. Without security there is no liberty or freedom, and without liberty and freedom, security is not worth preserving for democratic societies. Even though there are laws to prevent atrocities against the Schedule Cates, there exists a gap between its objective and its implementation. The majority of the beneficiaries of this Act are unaware of the legitimate claims of leading a dignified way of life or are unwilling to enforce it intensively. Even the Police, prosecutors and judicial officers are unaware of this Act as was pointed out by Calcutta High Court. Misapplication of the Act by police and the courts aggravates the problem ultimately leads to acquittals. Laws and legal processes are not self-executing; they depend on the administrative structure and the judiciary with the anticipation that the social attitudes are driven by notions of equity, social justice and fair play. However, the increasingly indifferent responses of those involved in the implementation of laws protecting the weak, the oppressed and the socially disadvantaged have persisted over the years and the system has failed to provide for self-correction. Hurdles exist at every stage of the process to attain justice including at the stage of registration of cases, investigation of cases, charge sheeting, and at the trial stages in the court of law. And also include the inadequate use of precautionary measures, inadequate protection, inadequate and irregular functioning of monitoring committees, inadequacy and delay in providing relief and rehabilitation etc. The Hon’ble Supreme Court recently has observed that provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are not being strictly enforced due to ‘the indifferent attitude of the authorities’. Constitutional goal of equality for all the citizens of this country can be achieved only when the rights of the Scheduled Castes and Scheduled Tribes are protected. The Hon’ble Court observed that the laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities. It is true that the State Governments are responsible for carrying out the provisions of the Act. At the same time, the Central Government has an important role to play in ensuring the compliance of the provisions of the Act. Section 21 (4) of the Act provides for a report on the measures taken by the Central Government and State Governments for the effective implementation of the Act to be placed before the Parliament every year. The constitutional goal of equality for all the citizens of this country can be achieved only when the rights of the Scheduled Castes and Scheduled Tribes are protected. The abundant material on record proves that the authorities concerned are guilty of not enforcing the provisions of the Act. The travails of the members of the Scheduled Castes and the Scheduled Tribes continue unabated.
Part 6
Finding and Suggestions
I find that, incidents of atrocities happens mainly for the reason that age-old caste hatred and the practice of untouchability is still prevalent in India despite the enactment of laws framed by the legislature to eliminate such practices. Illiteracy among Scheduled Castes, inadequate protection to victims of atrocities, inadequate and irregular functioning of monitoring committees formed by government, inadequacy and delay in providing relief and rehabilitation etc. mainly derails the implementation of laws preventing atrocities of them. Due to unawareness they are unable to approach the appropriate forum for the protection and enforcement of their rights.
Findings
(a) That maximum number of scheduled caste and scheduled tribes are not aware about the provisions mentioned in sc/st poa act 1989.
(b) That the acquittal is done on the ground that their was delay in the filing complaint by the scheduled caste/ tribe.
(c) That in maximum number of cases accused get bail under sc/st prevention of atrocities whereas there is no provision of section 438 of crpc.
(d) That no other act or law has over riding effect on the sc/st act , still maximum of the judges grant bail looking into the bailable offences mentioned in indian penal code which are mentioned in FIR.
(e) That the compensation amount is not granted to the victims on time, the procedure is very lengthy.
(f) Maximum number of jugdes and advocates are unable to interpret that sc/st poa 1989.
(g) Section 14A of sc st poa act 1989 which explains the limitation of the act ,High court doesn’t act according to the limitations prescribed in the act.
Suggestions
The wrongs suffered by these classes can be remedied only by a combination of measures. Free and compulsory elementary education, indeed quality education, is the most important. Most of the incidents of atrocities goes unreported for the reason of lack of education and lack awareness of legal rights of these victims. Constitution provides for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. In order to achieve its implementation,The Legal Services Authorities Act, 1987 was enacted to constitute special authorities for providing free and competent legal services to weaker sections of the society. The said Act provides for special efforts to be made for enlisting the support of voluntary social welfare institutions, particularly among Scheduled Castes. The Act further provides for free legal aid to the Scheduled Castes amongst others. In order to implement the said act in its full spirit it is necessary to that the National Legal Services Authority, a statutory body under the act, must formulate appropriate schemes to spread awareness and provide free legal aid to members of the Scheduled Castes.
Conclusion
The caste system has endured for centuries, and the descendants of the original high caste members continue to exploit the Scheduled Castes and Scheduled Tribes. Most of the atrocities committed against Scheduled Castes and Scheduled Tribes are of the type of assaulting them individually or in a group by an organized group of upper castes, irrespective of their status. The police department which is safeguards the life and property of citizens is manned by the majority caste which commits the largest number of atrocities on Scheduled Castes and Scheduled Tribes. Atrocities includes burning of their houses, looting of their property, abusing them by their caste name, sexual exploitation of women by upper caste men, bar to enter in temple, wrongfully dispossessing them from their land, intentionally insulting or intimidating them with the intent to humiliate them in any place within public view etc. It is the constitutional obligation of the state to protect the interest of Scheduled Castes and Scheduled Tribes from social injustice and atrocities. Despite various measures to improve the socio-economic conditions of the Scheduled Castes and Scheduled Tribes, they are still vulnerable. It has been shown that they are often deprived of their life on petty issues. Serious crimes are committed against them for various historical, social and economic reasons. Legislations have been passed by the Parliament like Protection of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 and the Protection of Civil Right Act, 1995. Despite these legislatures, Scheduled Castes and Scheduled Tribes are continually facing various kinds of atrocities committed by upper caste people in our country, so it is necessary that existing legislature to prevent caste-based atrocities must be strictly implemented and police officers refusing to implement such laws must be punished. Those who are the sufferers of this system must unite and capture political power because political power is the master key which will open the lock of social, economic and cultural exploitation. Nevertheless the real solution to the problem lies in the sensitization of the people. People must be sensitized through education that all the peoples including Scheduled Castes and Scheduled Tribes are the children of the God and therefore any hatred and atrocity towards them would be hatred to the God and sin. We, as a citizen of this country, should always keep one thing in our mind and heart that no people or community should be today insulted or looked down upon, and nobody’s feelings should be hurt.