Law As Paper Tiger!
By Subhash Gatade
21 July, 2006
(What to the American
slave is your Fourth of July? I answer, a day that reveals to him, more
than all other days in the year, the gross injustice and cruelty to
which he is the constant victim. To him, your celebration is a sham;
your boasted liberty, an unholy license; your national greatness, swelling
vanity; your sounds of rejoicing are empty and heartless; your denunciations
of tyrants, brass-fronted impudence; your shouts of liberty and equality,
hollow mockery; your prayers and hymns, your sermons and thanksgivings,
with all your religious parade and solemnity, are to him mere bombast,
fraud, deception, impiety, and hypocrisy--a thin veil to cover up crimes
which would disgrace a nation of savages. There is not a nation on the
earth guilty of practices more shocking and bloody, than are the people
of these United States, at this very hour. )
(Frederick Douglass, former
Does the cost of a 'goat'
equals that of a human being? Whether drinking water from a public lake
where even animals are free to visit should lead to a riot like situation
or the very interpersonal decision to marry a girl/boy of one's own
choice should culminate in the killings of the couple at the behest
of the community elders?
Any person who bears humane
sensibilities and sensitivities would rather decry these 'medieval'
style responses towards fellow human beings.
S/he would rather find her/himself
at wits end if s/he probes further and discover that people affected
by Tsunami engaged themselves in systematic discrimination against dalits
who were similar victims. S/he would be aghast to know that the upper
caste perpetrators of the Killevenamani massacre (1969) of 35 plus Dalits
were allowed to go scot free by the judiciary on the spacious plea that
the 'Upper Caste Gentry would not have gone walking to the place'.
In any normal country, all
such exposures in the media would at least lead to uproar at the national
level, lead to fresh stirrings within the nation's conscience, culminating
in a proces of self-introspection and possibly self-correction. But
India presents itself as a peculiar case in the comity of nations. Here
all such covert and overt violence against a part of the citizenry has
received not only legitimacy, thanks to the purity and pollution based
caste order, but has been sanctified by the religious scriptures also.
One still remembers how one of the top leaders of the VHP had rationalised
killings of five dalits in Jhajjar four years ago emphasising that the
Puranas - the religious scriptures of the Hindus- accord precedence
to a bovine vis-a-vis a human being.
Thus India, a country of
billion plus people, which is itching to get a superpower status, which
takes pride in its ancient tradition and culture and whose elite goes
gaga over the booming sensex, rather presents a strange spectacle of
a nation. If one decides to go by economic indices alone then we may
get a rosy picture, but a close look at the goings on within the society
makes it clear that there is a disjunction between the world of economics
and the lifeworlds of its people. The core of the society bears its
encounter with barbarism in abundance.
But before continue raising
the follies of the nation and its people in a haphazard manner, it would
be opportune to take a close look at the alleged theft of a goat which
got exchanged by snuffing out the life of a man in his teens recently.
NOT PLAYING A GOAT
" Lucknow : A teenaged
dalit named Mukesh was beaten to death in Ferozabad district for daring
to participate in Bhagwat Paath organised by the local Lodh Rajput community.
The victim's brother and some relatives who came to the rescue of the
teenagers were also assaulted. The incident took place on Tuesday night.
Though the police confirmed
that the provocation behind the murder was caste bias, the accused alleged
that they had caught the victim while stealing a goat.The police could
arrest only two of the twelve named accused.
The above news appeared in
the 15 th June 2006 ( Lucknow edition of Times of India). Ofcourse there
was no followup of the incident in the print or the electronic media.
Rather it received the same fate as scores of other news, which are
Imagine one of those intrepid
journalists decides to follow the story to see for her/himself the way
the event unfolds itself. What would be her/his observations?
To be very frank, the journalist
would discover not single but multiple versions of the whole incident.
For all practical purposes one would decide one’s presentation
of the ‘truth’ depending upon one’s own location in
the caste matrix in the area.
The Lodh Rajputs, who come
under the resurgent OBCs and who form backbone of local power structure
in different areas, would be hell-bent upon proving the 'crime' of the
deceased. Perhaps to garner further community support to the inhuman
act committed by their own caste men, they may present a fresh slew
of charges against him and would also vouch that he also harassed ladies
of the community. They would be loathe to listen to any counterview
to their argument which would try to raise the issue of 'punishment'
commensurate with 'crime' and the role of the institutions of justice
delivery established by the republic more than 56 years ago to do the
The hapless dalits would
share the way in which they came to know about the tragic death of one
of their dear ones, the way the police adopted a dilly dallying tactics
in this particular case and how it itself became a party in the stigmatisation
of the whole dalit community. It does not require much of a genius to
prophesise that unless and until some powerful voice/s join the grief
of the dalits, the brutal murder of Mukesh by the Lodh Rajputs would
slowly lead to the blind alley of a 'closed file.'
The tragic prognosis of this
incident may appear disturbing to any civilized person but the fact
of the matter is that the way the troika of state-judiciary-(rest of)
civil society unfolds itself in any of such cases of dalit atrocities,
the fate is not dissimilar. May it be the case of 'traditional' atrocities
where the dalits are denied any rights whatsoever in the Hindu society
or may it be the case of 'modern' forms of resistance put in by the
dalits or a caste hindu response to the changing situation of the dalits,
the picture is same everywhere.
It was only last year that
a dalit basti situated in Gohana (a town, which is hardly 100 kms from
the capital,) was attacked by a few hundred strong mob of mostly Jat
youths. The marauders burnt down scores of their houses and looted their
property in daytime in the presence of two hundred strong police force
posted near the basti with senior officers in attendance. The immediate
provocation for the attack was the murder of a Jat youth allegedly by
a few dalits who felt agitated when the murdered man alongwith his friends
had passed obscene remarks against dalit women.
Another specificity of the
attack was that the Jat youths were just 'implementing' the decision
of the caste council's ( caste panchayat) which had given an ultimatum
to the police to hand over the 'culprits' to them or face reprisal attack
on the basti.To rub salt in the wound, when the marauders left , the
seniormost boss of the police in the region, not only minimised the
extent of plunder but also expressed satisfaction that there was no
loss of lives from either side.
It was clear to any impartial
observer that the main 'grievance' of the Jats against the dalits was
the way many among them had refused to follow the 'community profession'
of safai and had charted an alternate path of life and were now refusing
to tolerate humiliation any more.
Recently when a group of
human rights activists visited the basti, they found to their dismay
that out of 23 upper caste accused in the case, (while the actual number
was in hundreds) till date only three could be apprehended and they
were also released on bail immediately. The CBI enquiry ordered into
the case is moving at a snails pace and seven dalits were still languishing
in jail without any sign of bail supposedly for being party to the death
of the Jat youth.
WAY TO INJUSTICE
PAVED WITH "GOOD LAWS"
(Social justice minister
Meira Kumar pointed out that the conviction rate in cases registered
under the Protection of Civil Rights Act is a mere 3.75 per cent. Besides,
75 to 77 per cent cases of crimes against Dalits remain pending despite
the existence of special and designated courts. Union home minister
Shivraj Patil, who was also present at the conference, acknowledged
that the system was not delivering justice and existing laws safeguarding
the rights of backward classes may have to be changed or tightened.
January 12, 2005, The Telegraph)
The first Prime Minister
of India Jawaharlal Nehru always sang paens to the Unity and Diversity
of the country. But he forgot to add that the institution which 'unites'
the Indian people who are spread over a subcontinent is their strict
adherence to the age old 'caste system'. It is a system based on exclusion
and graded hierarchy and the only 'diversity' which it allows is it
the nature of violence which is unleashed against the people who are
considered at the bottom of the Caste Matrix.
Perhaps the plight of the
dalits in Gohana or in Ferozabad would lead us to a query about the
presence/absence of appropriate laws to curb such offences against them.
A person unaware of the way Indian polity functions may presume that
spurt in atrocities against dalits is mainly due to absence of laws.
S/he is sadly mistaken.
The founding fathers of the
Constitution had solemnly resolved to secure to all citizens Justice:
Social, Economic and Political, Liberty of thought, expression, belief,
faith and worship. And equality of status and of opportunity, and to
promote among them all fraternity, assuring the dignity of individual
and unity. It also emphasised that :The state shall not discriminate
against any citizen on grounds of religion, race, caste, place and birth
or any form. The Directive Principles of the Constitution underlined
The State shall promote with special care the educational and economic
interest of the scheduled castes/tribes and shall protect them from
social injustice and all forms of exploitation.
It is worth noting that in
accordance with these Constitutional provisions a number of measures
have been initiated by the government for providing protection to untouchables
(Scheduled Castes or SCs)and the tribals. These measures can be categorised
into two broad themes : protective and developmental. Under the 'protective'
sphere untouchability was legally abolished and its practice in any
form forebidden by the Protection of Civil Rights (Anti-Untouchability)
Act of 1955.
To protect the category of
SC and ST in a more effective and comprehensive manner a few other legislations
were introduced. Policies of reservation and representation were adopted
to improve the access and participation of these sections in the economic,
educational and political spheres. The enactment of the bonded labour
(Abolition) act, 1976 or laws to curb child labour were part of the
other major measures taken to make the protection for these sections
more stringent and effective. The year 1989 witnessed the government
enacting another act, namely the Scheduled Castes and Tribes (Prevention
of Atrocities) Act to prevent atrocities against SC/STs. The necessity
for enactment this act had arisen because under the existing circumstances
the Protection of Civil Rights Act (1955) and normal provisions of the
Indian Penal Code were found to be inadequate to provide safeguards.
The SC and ST (POA) Act, 1989 was pioneer in many ways. It provides
for not only appointment of special courts, punishment for neglect of
duties to officials, forfeiture of property of the perpetrators, confiscation
of arms from the dominant castes in the area, declaration of a particular
area atrocity prone, and even asks for distribution of arms to the downtrodden
But as Justice V.K. Krishna
Iyer, the legendary human rights activist and a former Supreme Court
Judge puts it, all such 'half hearted legislation has proved to be impotent
and ineffectual in practice'. He also added that the aim behind these
attempts was to have a 'more effective, more comprehensive and more
punitive provisions of law'. However ' the ruling classes saw to it
that, at the functional level, the legislations were paper tigers' (
All quotes from in 'Forward by Justice Iyer to a book ' Dalit Utpidan
aur Vidhik Upchar, by P.L.Mimroth, Nov 2000, Delhi)
There have been innumerable
reports detailing how the local police in connivance with the perpetrators
themselves, sabotages implementation of laws basically meant to protect
the dalits and the tribals. It is noticed that instead of filing cases
under the POA act, it prefers filing cases under normal provisions of
Indian Penal Code, which facilitates release of the accused on bail
easily. It also facilitates filing of 'counter cases' against the victims,
so that a compromise could be reached. The Third Report of the NPC (New
Delhi :GOI, 1980- p.31) had rightly underlined how " [f]alse criminal
cases are sometimes engineered merely for the sake of making arrests
to humiliate and embarass some specified enemies of the complainant,
in league with the police for corrupt reasons"
A related phenomena is the
way in which the powers that be take steps to deter enlightened people
to fight for constitutionally granted rights of the dalits and the tribals.
Human Rights Watch Report ( Vol 4, no. 15, June 1992) shares details
of how Criminalisation of Social Activism in India takes place. In its
much acclaimed report 'Broken People - Caste Violence against India's
"Untouchables" (1999) Human Rights Watch repeats how 'State
agents have acted directly and forcefully against those attempting to
claim their rights.Dalit activists throughout the country face charges
as "terrorists", "threats to national security"
and "habitual offenders.." (Page 153)
The ‘Report on Prevention
of Atrocities against Scheduled Castes’ (NHRC, 2004,Delhi) rightly
underlined the way the ‘state has failed in this respect’
on ‘several fronts’. According to the conclusions of the
report the state has failed on ‘several fronts’. These are
‘failure to effectively implement the laws relating to atrocities
against SCs and STs’ which is ‘reflected both in respect
of preventing violence from taking place’ as well as in the ‘inability
to punish perpetrators of violence after the crime is committed’;
‘failure to act against its own agencies involved in the commission
of violence ;’ failure to strengthen the watchdog institutions’
etc. ‘The failure of the state vis-à-vis mobilization of
caste Hindus in favour of social democracy embedded in the constitution
and various laws and state policies’ can also be considered palpable
which has ‘created ambivalence in its intentions and contradictions
in its actions’ .
The Sixth Report of the National
Commission for SCs and STs (1999-2000 and 2000-2001) had expressed its
deep sense of dissatisfaction over the way all these measures are implemented.
While commenting that “..the number of cases registered under
Prevention of Civil Rights act and SC and ST (Prevention of Atrocities)
act has been showing downward trend.. as a healthy development “it
exposes the way this reduction in no of cases is achieved . According
to the preface, “ But from its reviews with various state governments
the commission is of the view that a large number of cases go unregistered,
mainly because of the reluctance on part of the police officers to register
the cases and also because of lack of awareness among the members of
these communities about the provisions of these acts."
In addition, there are delays
in investigation, collusion with offenders and manipulation of witnesses
and evidence which all contribute to reduce the effectiveness of these
protective legislations.” (See Preface Page II) In the same vein
it tells us that in most of the states neither the meetings of the monitoring
and vigilace committees are held regularly nor any special courts are
set up to deal with cases of dalit atrocities.
It also adds: “ The
question of setting up exclusive special courts, particularly in the
states having large pendency, needs serious consideration of the government.
The rate of convictions in various states ranges from 5 to 10 percent
and it is necessary to examine the reasons for such low convictions
rates and for taking urgent corrective action.”(ibid) According
to the commission ,” The apex court has held that the Special
courts cannot directly entertain the cases under these acts, without
following commital proceedings. It is, therefore, necessary to amend
these acts suitably to authorise the special courts to admit cases under
these acts directly.”(ibid).
One can go on mentioning
the various schemes or the affirmative action programmes run by the
government supposedly for the empowerment of the dalits and also give
details about the systematic manner in which a conscious attempt is
on to deny what is due to them. One would be surprised to know that
not only thousands of posts which are meant for them especially from
the upper class category have been lying vacant for years together but
there are thousands and thousands of people belonging to the non dalit
category who have manipulated jobs meant for these sections by procurring
‘false certificates’ and the concerned authorities are sitting
over this despite repeated complaints by the aggrieved people. The seriousness
of the phenomenon of false certificates can be gauged from the fact
that the last two annual reports of the National SC and ST Commission
( since bifurcated) have devoted a chapter each to discuss the gravity
of the situation arising out of this.
This makes it crystalclear
that the state has to show firm political will, get ready to make amends
to ameliorate the situation and move beyond pious rhetoric if it is
serious about the commitments it made with the ‘other people’
exactly 54 years back while promulgating the constitution. But one cannot
expect that there would be any radical departure from the way in which
the state has been functioning.
Ofcourse before moving on
to the unholy alliance between the state and ( a section of ) civil
society it would be opportune to take a close look at the Gujarat experience.
A CLOSE LOOK AT THE
The Gujarat Earthquake in
the year 2001 and the consequent relief and rehabilitation programme
was an eyeopener to the outside world regarding the deep seated caste
bias in the Gujarati community apart from the much talked about bias
against the minorities. There were reports that at places the relief
and rehabilitation work bypassed the dalits and the Muslims. There were
also reports about the siphoning of the relief material to the relief
camps inhabited by the non-dalit or upper caste hindus and how consciously
the dalits as well as the Muslims were deliberately left out in many
The organised genocide of
Muslims in the year 2002 at the behest of the Sangh Parivar organisations
which was aided and abetted by the Modi government was another occasion
when the travails and tribulations of the dalits came under further
scrutiny. While a section of the dalits cooption in the Hindutva agenda
and their metamorphosis as foot soldiers of the Hindutva brigade was
duly reported, the Varna dominated media did not deem it necessary to
emphasise some related facts. The genocide in Gujarat had also a little
dalit blood accompanying it. The dalits lost 108 lives in Gujarat, 38
alone in the city of Ahmedabad. Quite a few of these deaths occurred
due to the dalits resisting the Hindutva goons by siding with hapless
Ofcourse when one comes to
the way the Atrocities act unfolds itself in the state, then one comes
across the same shocking pattern which is evident at the national level.
A conclusion of a detailed and systematic study of 400 judgements done
by Vajibhai Patel, Secretary of Council for Social Justice corroborates
this. It tells us that utterly negligent police investigation at both
the higher and lower levels coupled with a distinctly hostile role played
by the public prosecutors is the main reason for the collapse of cases
filed under the atrocities act. It is worth noting that he has meticulously
documented these judgements delivered under this act since April 1,
1995 in the Special Atrocity Courts set up in 16 districts of the state.
The study also blasts the common perception is that the inefficacy of
this law is due to false complaints being lodged or compromises between
the parties, in actuality it is a complicit State that has rendered
the Act toothless.
A writeup in the 'Communalism
Combat' ( March 2005) by Teesta Setalvad presents in a nutshell the
main findings of the study :
# In over 95 per cent of
the cases, acquittals have resulted due to technical lapses by the investigation
and prosecution, and in the remaining five per cent, court directives
are being flouted by the government. Often while crimes under the IPC
against the accused have been proved, offences under the Atrocities
Act have not, suggesting a systemic bias against recording and establishing
crimes under this law.
# As a result of the attitude
of the state police and the state public prosecutors, those accused
under the Act for criminal acts like murder (for which life imprisonment
is the sentence) and rape are being allowed to go scot-free.
# Numerous judgements of
the special courts set up under the Atrocities Act in Gujarat —
which due to lapses in investigation and prosecution, have led to the
acquittals of the accused —have passed strictures against the
negligence demonstrated by both the police and the public prosecutors
and even summoned time-bound ‘action taken’ reports. Often
policemen have even resorted to giving false evidence to protect the
accused while prosecutors have attempted to mislead the courts by arguing
that the provisions of the Atrocities Act are not mandatory.
# Under section 4 of the
Atrocities Act, “Whoever, being a public servant but not being
a member of a Scheduled Caste or a Scheduled Tribe wilfully 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 per cent of the judgements
studied by the CSJ, courts have passed strictures against errant police
officials invoking provisions of section 4 under the Atrocities Act,
but the government of Gujarat, instead of taking action against the
erring officers, has honoured them with promotions.
The deliberate manner in
which the state machinery connives with the perpetrators of the crime
is evident in very many ways.
- Acquittal due to investigation
by a lower officer : The atrocity rules of the 1995 make it mandatory
that investigations of an offence should be carried by either by a DySP
or an officer above his rank, who is supposed to send his report directly
to the state DGP. In 95 per cent of the cases it is observed that the
accused are acquitted merely on the ground that the investigation of
the offence was done by an officer below the rank of DySP
- Acquittal due to non-inclusion
of caste certificate by the police : The act makes it clear that the
caste certificated of the complainant issued by a competent authority
be annexed to the complaint and produced by the police before the court.There
have been several judgements when rape accused were allowed to go scot
free merely because the investigating officer did not annexe the caste
certificate of the complainant.
-Negligence by public prosecutors
: The appointment of special public prosecutors to try cases is mandatory
under the act but the hostile role played by such SPPs to prosecute
cases destroys the case. It takes years to reach the stage of trial
and when the victim/complainant enters the witness box to depose, s/he
does not know who the PP is.The CSJ has studied several judgements in
which the courts have passed severe strictures against deliberate attempts
by the special public prosecutors to avoid implementing the special
provisions under the Act thereby vitiating the prosecution case itself.
The CSJ study rightly notes that 'an utter lack of commitment to this
legislation and lack of political will by state governments to prosecute
the atrocities committed under this Act have rendered this legislation
meaningless.' It also tells that 'the Scheduled Caste Welfare department
of the state government, created with the objective of providing social
justice to Dalits and Adivasis, has glaring vacancies in key posts making
the implementation of social justice measures even more difficult. There
are over 300 vacancies in this state department, from the rank of district
officer downwards in Gujarat alone.'
(UN) CIVIL SOCIETY
AND ITS SILENCES
It is possible that all this
details where the state comes out in rather unflattering terms could
be brushed aside as a story repeated ad nauseam. All the talk of dalit
atrocities could be presented as another extension of the way in which
'state in the third world' unfolds itself. But the key point worth emphasising
is that caste atrocities much like gender oppression or racial atrocities
have a specificity which transcends the binary of 'state as perpetrator'
and 'people as victims' . In fact they implicate the partisan role played
by the people themselves.
The 'Report on Prevention
of Atrocities against SCs ' prepared by NHRC ( 2004) presents details
of the way in which the civil society presents itself :
-civil society becomes a distinct beneficiary of caste based order and
how it helps perpetuate the existing unequal social reactions and frustrates
attempts to democratize the society because through the customary arrangements
the dominant classes are assured of social control over people who can
continue to abide by their commands without any protest.
- In fact it represents the
deep divide in social values, where people themselves wish to enjoy
all rigths and privileges which a democratic liberal society offers
them but are vehemently opposed to their being granted to the scheduled
- Civil society effectively
undermines the authority of the state by obstructing the effectuation
of rights and entitlements to all citizens and attempting to perpetuate
caste based inequalities, indignities and violence against SCs.
- Civil society reflects
a deep seated ambivalence between obscurantism and modernity
Of course the uncivil nature
of the civil society presents before us a unique challenge where the
need then becomes to rise above a mere discourse on civil and constitutional
rigths and address the failure of the largest democracy of the world
to go beyond mere form. We have to appreciate that it concerns the greater
hiatus that exists between constitutional principles and practice and
corresponding ethical ones based on a diametrically opposed ideal. Everyone
has to see that under the purity and pollution based paradigm which
is the cornerstone of our caste system, inequality receives not only
legitimisation as well as sanctification. As inequality is accepted
both in theory and practice, a legal constitution has no bearing on
the ethical foundation of caste-based societies.
It was a manifestation of
this real hiatus that when Bhanwari, a Saathin from Women's Development
Programme, Rajasthan was raped by the villagers, the trial judge acquitted
the accused on the reasoning that "rape is usual" and 'upper--caste
man could not have defiled himself by raping a lower-caste woman.'