The Mulnivasi Thesis Of The Supreme Court
By Dr Anand Teltumbde
09 February, 2011
Countercurrents.org
In the wake of a series of anti-people and anti-poor judgements coming from the Supreme Court in recent years, ranging from orders for demolitions of slums, eviction of hawkers to the ban on strikes by government employees, which have significantly shaken the faith of people in judicial system, the judgement that was pronounced on 5th January 2011 by its bench comprising judges Markandey Katju and Gyan Sudha Misra came as a pleasant surprise to scores of activists. The case was an appeal by Kailas and others against the punishment awarded to them by the High Court for having paraded a Bhil (tribal) woman naked through village. The honourable court dismissed the appeal and upheld the punishment.
The case
The case related with the victim Nandabai, 25 years of age, who belonged to the Bhil community in Maharashtra. She was residing with her father, handicapped brother, and mentally challenged sister. She had illicit relations with one Vikram and had given birth to his daughter and was also pregnant through him for a second time. Vikram belonged to a higher caste and his marriage was being arranged by his family with a woman of his own caste. On 13.5.1994 at about 5.00 P.M. when the victim Nandabai was at her house, four people, Kailas, Balu, Subabai and Subhash, went to her house. They asked why she had illicit relations with Vikram and began beating her with fists and kicks. After that they tore her clothes and paraded her naked through the village and kept on beating her. An FIR was lodged around 8.40 pm at the Taluka Police Station, which investigated the matter and filed a charge-sheet.
The accused were convicted in the sessions court, Ahmednagar on 05.02.1998 under sections 452, 354, 323, 506 (2) read with Section 34 of IPC and sentenced to suffer RI for six months and to pay a fine of Rs. 100/-. They were also sentenced to suffer RI for one year and to pay a fine of Rs. 100/- for the offence punishable under Sections 354/34 of IPC. They were also sentenced under Section 323/34 of IPC and sentenced to three months RI and to pay a fine of Rs. 100/-. The appellants were further convicted under Section 3 of the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to suffer RI for one year and to pay a fine of Rs. 100/-.
The accused appealed before the High Court against the judgement. High Court acquitted the appellants of the offence under Section 3 of the SC/ST PoA Act, but the conviction under the provisions of the IPC was confirmed. However, that part of the order regarding fine was set aside and each of the appellant was directed to pay a fine of Rs. 5000/- to the victim Nandabai. The Supreme Court vide this subject judgement expressed surprise at the High Court setting aside conviction under the SC/ST PoA Act on a flimsy technical grounds that the caste certificate of the victim was not produced and investigation was not done by a police officer of the rank of Deputy Superintendent of Police, as prescribed in the rules instituted for implementing the Act. It rightly observed that these technicalities could not constitute a ground for acquittal. It however did not go into it for another technicality that it was not challenged in appeal.
Toll of Technicalities
The judgment is generally hailed by many civil rights activists, particulrly those working among the tribals. It is indeed commendable, not only for upholding the conviction of the powerful people who committed a heinous crime against a tribal woman but also for the radical observations as above with regard to subversion of the SC/ST PoA Act. It is a bitter fact that the courts have been acquitting criminals charged under this Act for such ridiculous technicality as the non-attachment of a caste certificate or for having investigated the case by the officer below the rank of a Dy Superintendent of Police. Ahmedabad based Council for Social Justice studied 400 judgements under the SC/ST PoA Act delivered by the special courts set up in Gujarat in 16 districts from 1995 to 2007. It revealed a shocking pattern of main reasons behind the collapse of cases filed under the SC/ST PoA Act in 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 per cent cases, acquittals had resulted due to technical lapses by the investigation and prosecution, and in the remaining five per cent, court directives were flouted by the government.
Paradoxically, the agency vested with responsibility of implementing the Act has been the main culprit in rendering this Act, hailed by many as the only Act with teeth, utterly toothless. Scores of criminals have thus been acquitted because of some or the other lapse of the state functionary in implementing the Act. Had the current observations of the Supreme Court come earlier many a hapless victim of caste crimes would have been spared their frustration. As a matter of fact, there is a provision in the Act to punish the state functionary found to be guilty of willful negligence of duty. If the courts could take these technical lapses so seriously as to acquit a rapist or a murderer, it should also take the persons responsible for them equally seriously. In many cases, as the other independent studies have found out, the technical lapses are deliberately committed by the investigating personal at the behest of powerful criminals. The balance cases are due to their negligence towards victims because of their socio-economic background. In either case, they are they become punishable under the Act; in the former as an accomplice in the crime and in the second for willful negligence. Leave apart punishment, not a single official has been charged for these crimes. Even in the subject case, having observed on the technical lapse, the Supreme Court could give directions to proceed against the officials who were responsible for them.
Anthropological Thesis
What is unusual in the judgement is the anthropological thesis put forth by the Court that the Bhils, the tribe to which the victim belonged) were “probably the descendants of some of the original inhabitants of India known as the ‘aborigines’ or Scheduled Tribes (Adivasis), who presently comprise of only about 8% of the population of India. The rest 92 % of the population of India consists of descendants of immigrants. Thus India is broadly a country of immigrants like North America.” The judges go on to elaborate this thesis over almost 10 pages of the total 17-page judgement, drawing from The Cambridge History of India to the internet sources. For example, the judges cite from Google (it is not a repertoire of any information but just a search engine!), “The original inhabitants of India’, it is mentioned: “A number of earlier anthropologists held the view that the Dravidian peoples together were a distinct race. However, comprehensive genetic studies have proved that this is not the case. The original inhabitants of India may be identified with the speakers of the Munda languages, which are unrelated to either Indo-Aryan or Dravidian languages.””
The main thrust of the thesis seems to prove that even the Dravidians, commonly taken as the original inhabitant of the land were the outsiders. While reading this part of the judgement, one wonders why the judges were going into this anthropological speculation. Neither had it related with the question of law nor with the facts relating to the case. At the end of this thesis, the judges simply exhort the countrymen to respect the tribals.
Portending Problems
The observations in the judgement are certainly pro-Adivasi and supportive of the usual contention of Dalits against the upper castes and therefore the judgement is rightly lauded by the activist circle. But it portends some serious problems in its implications. Is it necessary for the tribals to be original inhabitants of the land to be respected in the country? It is the objective fact that India is a country with great diversity and with some sections of population (SCs and STs) facing social segregation. The Constitution as such takes it into account and stresses equality of people and still makes exception of these sections, providing special measures for them against discrimination by others. There is no new anthropological or historical justification needs to be invoked for it. If some institution of the stature of the Supreme Court insinuates that all non-tribals are the migrants to India, it would just spark off a new identity debate, without bringing in respectability to the tribals as intended.
While there may not be much dispute about the tribals being the original inhabitants of India, as one of their indigenous names- adivasi- suggests, the hypothesis put forth by the judgement tends to negate the caste differences in population. If one brings in this migrant theory, one will have to logically explain the segregation of another lot called Dalits in India. Already there is a movement led by Dalits, which claims a status of mulnivasis for themselves along with the tribals and the lower shudra castes. It is a strategy to forge new identity of the non-dwija castes against the dwijas quite like bahujan, much famed because of the electoral successes of BSP. The separation of tribals from Dalits, the latter being clubbed with the upper castes may rather weaken the incipient unity of the tribals and Dalits as the scheduled categories. This unity is sociologically important unlike the artificial construction of bahujan or mulnivasi by overlooking serious contradictions between the shudra castes and Dalit-adivasis. This kind of hypothesis might trigger vested interests to pitch tribals against Dalits in the competitive political paradigm obtaining in the country. Such developments could bode ill for the possibility of structural transformation of the society. It is like dividing Dalits into Ambedkarites versus others as the Shiv Sena does or into various categories of them contending for reservation as being engineered by the ruling classes.
Futility of Moral Invocations
One appreciates the moral invocations by the honourable judges in making people respect the tirbals. But sometimes well intentioned acts also have unintended ramifications, which could completely undermine the original intentions. This judgement could well be so. Although the judgement modestly admits tentativeness and indicates the need for further research (about its anthropological hypothesis), one could humbly submit that it is totally extraneous to the case. The case was simple: to consider whether the punishment awarded by the High Court was justified or not. While dismissing the appeal judges observed, “… this case deserve total condemnation and harsh punishment.” If the facts of the case were not in dispute the punishment awarded by the High Court was not any harsh. For the crime such as parading a hapless tribal woman naked and beating her the punishment of less than a couple of years RI and a few thousand rupees fine coming to the culprits after 17 years of legal battle is rather the travesty of justice.
Instead of invoking moral invocations, the Supreme Court could have at least observed the guilt and directed a trial of the state functionaries who while dealing with the case of Atrocity had not complied with the rules. This would perhaps have had an impact in restoring the teeth of the Atrocity Act.
Dr Anand Teltumbde is a writer, political analyst and a civil rights activist with CPDR, mumbai
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