The Unused Ammunition
Human Rights Features
28 August, 2003
The cure is part of the cause in this
case; as members of the Scheduled Castes and Scheduled Tribes (SC/STs),
also known as Dalits, avail themselves of the advantages of reservation,
and awareness of rights increases, the status quo of inter-caste relations
in villages faces severe challenges. Increased violence, and increased
reporting of incidents of violence, is a natural product.
However, this increase
in violence seems improbable in the light of the astonishing amount
of international political and civil society attention that the Dalit
cause has been receiving. Dalit NGOs and political groups led a high-profile
campaign at the World Conference Against Racism in 2001. Although the
campaign's strategy may have been an example of misguided politicking,
both the UN Committee on the Elimination of Racial Discrimination (CERD)
and the Special Rapporteur on Race have since made caste one of their
central concerns. Governments have also taken up the issue bilaterally
So why has the impact
of these dramatic developments not been felt within the country? Although
Dalit groups have had great success in gaining publicity for their cause,
they have consistently failed to hold the Indian governments to the
standards of existing national and international legislation. The Prevention
of Atrocities Act is a case-in-point.
In 1989, the Government
of India passed the Prevention of Atrocities Act (POA), which delineates
specific crimes against Scheduled Castes and Scheduled Tribes as "atrocities,"
and describes strategies and prescribes punishments to counter these
acts. The Act attempts to curb and punish violence against Dalits through
three broad means. Firstly, it identifies what acts constitute "atrocities."
These include both particular incidents of harm and humiliation such
as the forced consumption of noxious substances, as well as the systemic
violence still faced by many Dalits, especially in rural areas. Such
systemic violence includes forced labor, denial of access to water and
other public amenities, and sexual abuse of Dalit women. Secondly, the
Act calls upon all the states to convert an existing sessions court
in each district into a Special Court to try cases registered under
the POA. Thirdly, the Act creates provisions for states to declare areas
with high levels of caste violence to be "atrocity-prone"
and to appoint qualified officers to monitor and maintain law and order.
Unlike its predecessor,
the 1955 Civil Rights Act, which only concerned itself with superficial
humiliations such as verbal abuse of the lower castes, the POA is a
tacit acknowledgement by the government that caste relations are defined
by violence, both incidental and systemic. The POA gives Dalits vital
ammunition in the form of legal redress for this violence.
Although the POA
is a powerful and precise weapon on paper, in practice the Act has suffered
from a near-complete failure in implementation. Ironically, the primary
obstacles to implementation are intended to be the primary enforcers
of the Act-the lowest rungs of the police and bureaucracy that form
the primary node of interaction between state and society in the rural
areas. Policemen have displayed a consistent unwillingness to register
offenses under the act. This reluctance stems partially from ignorance.
According to a 1999 study, nearly a quarter of those government officials
charged with enforcing the Act are unaware of its existence.
In most cases, unwillingness
to file a First Information Report (FIR) under the Act comes from caste-bias.
Upper caste policemen are reluctant to file cases against fellow caste-members
because of the severity of the penalties imposed by the Act; most offenses
are non-bailable and carry minimum punishments of five years imprisonment.
Hard work by human rights defenders has slowly begun to decrease this
problem. Nevertheless, the staggering scope of the problem demands government
intervention before cases can be properly registered under the Act.
A bigger obstacle
faces victims who actually manage to lodge a complaint. Failure to follow
through with cases is alarmingly apparent at the lowest echelons of
the judicial system. The statistics speak for themselves: out of 147,000
POA cases pending in the courts in 1998, only 31, 011 were brought to
trial. Such delay is endemic to the Indian judicial system. Although
the POA mandated the creation of Special Courts precisely to circumvent
this problem, only two states have created separate Special Courts in
accordance with the law. In other states, existing sessions courts have
been designated Special Courts, while still being asked to process their
usual caseloads. Since many different Acts require the creation of Special
Courts, such sessions courts are often overloaded with a number of different
kinds of "priority" cases, virtually guaranteeing that none
of these cases receive the attention they are mandated to receive.
Even if cases make
it to trial, the POA also suffers from abysmal rates of conviction.
Out of the 31,011 cases tried under the POA in 1998, only a paltry 1,677
instances or 5.4% resulted in a conviction and 29,334 ended in acquittal.
Compare this to the conviction rate in cases tried under the Indian
Penal Code: in 1999, 39.4% of cases ended in a conviction and in 2000,
41.8%. Judicial delay is just one cause of this low
conviction rate; the lapse between the case being registered and the
trial means that witnesses who are often poor and face intimidation
in the interim, turn hostile and the
case becomes too
weak for a conviction. The long wait also results in many plaintiffs
losing interest. Judicial bias against Dalits is rampant and unchecked,
and court decisions frequently bear the mark of such bias.
So why has there
not been more public outcry about the dismal failings of the POA? Within
the government, shoddy monitoring systems have prevented effective action
from being taken. Although not statutorily mandated to do so, the National
Commission for Scheduled Castes and Scheduled Tribes (NCSCST) monitors
the implementation of the Act. The NCSCST only reports to the Central
Government, although it primarily monitors compliance to the POA in
the states. The NCSCST has state offices that report to it, but those
are vastly understaffed and only have an advisory relationship to the
state legislatures. Such a monitoring system depends on the central
government's commitment to Dalit rights for enforcement of the NCSCST's
recommendations. The sorry record of the POA is ample evidence that
this commitment is lacking.
The structural flaws
of the monitoring system have instead led to a lot of futile finger-pointing
about the failures of the POA. For example, in 1998, the NCSCST recommended
that states conduct awareness programs through NGOs about the Act for
citizens and government officials. In its reply to this recommendation,
the Central Government placed the responsibility for organizing awareness
programs with the states. However, there was no indication that the
recommendation would be referred to the states, nor was there any provision
for follow-up between the central government and the states. Such instances
of passing the buck are not exceptional; most of the recommendations,
particularly those relating to land reform laws and special court creation,
are referred to the states without any provision for follow-up.
The NCSCST is also
hobbled by its mandate. Its chairman is not authorized to release funds.
Repeated requests from the NCSCST to the central government to increase
its funding and staff are either ignored or deflected to various state
agencies and then ignored. Similarly, the Commission can also receive
and investigate complaints under its powers as a civil court, but cannot
enforce its findings because it is not a criminal court. The NCSCST
is virtually powerless as a result, and cannot carry out its responsibilities
as the monitoring body of the POA.
Outside of the government,
the steadily growing movement of NGOs also seems to be misguided. Rather
than holding India to its existing legislative commitments to Dalits
in the POA, the leading Dalit voices push pie-in-the-sky agendas. The
recommendations at the end of the bleak "Black Paper" released
by the National Campaign for Dalit Human Rights include such absurdities
as taxing corporations in order to fund Dalit programs and allocating
20% of the GDP of the country in order to fund programs meant specifically
for Dalit welfare. Astute recommendations that underscore what is already
in the laws-mandating the creation of special courts and the recruitment
of a minimum percentage of Dalits in all local police forces-lose their
weight in the midst of such impractical recommendations.
Worse yet, the recommendations
of the Dalit groups seem to be taken more seriously than the recommendations
of government bodies. The recent Bhopal Declaration, a set of demands
issued at the end of a conference of Dalit rights groups, included a
demand for "a system of collective punishment
enjoy community support and protection and escape the law." Such
a measure clearly circumvents the concept of individual rights that
is the basis of the Indian justice system. Madhya Pradesh Chief Minister
Digvijay Singh's zeal in implementing such extra-legal measures is likely
to result in a backlash against Dalit rights.
The Prevention of
Atrocities Act is a powerful piece of legislation. If only the many
voices professing to be working on behalf of the Dalits could work effectively
to make sure that the Central Government were held to its promises.