The Myth of the ‘Misuse’ of Laws Meant for the Protection of Dalits and Tribals
Are the laws meant for the protection of Dalits and tribals are put to misuse?
It is a theme which recurs regularly in the discussions engaged in by the chattering classes of the country. While nobody can deny that frivolous cases are not filed under this act the manner in which the issue gets raised creates an impression that the only ‘use’ of this law is its ‘misuse.’ Neither the polity nor the articulate sections of our society seem ready to go for a reality check. In fact, as a marker of these classes’ ‘sensitivities’ towards this delicate issue, even Ms Mayawati in her earlier incarnations as Chief Minister of UP had cautioned the police about its ‘misuse’. She is also reported to have issued G.Os (government orders) to use this law only in cases of rapes and murders of the Dalits.
The issue also came up for discussion in the parliament recently when a member raised query dealing with the theme. As reported in a section of the press, while replying to this query the minister for social justice and empowerment, Mr Napoleon, told the house that there were 6,564 false cases in 2008 across India under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, called the PoA Act. It is widely known that this Act provides for a sentence of up to five years for an atrocity committed or humiliation heaped on a Dalit, and provides for the setting up of special courts for trial of cases. (Hindustan Times, 27 th April 2010)
A break up of the figures cited by the said minister is quite revealing. Of these, 2287 false cases came from one state: Rajasthan. Andhra Pradesh followed at 1,577 false cases. Uttar Pradesh, the state with the largest Dalit population (21 per cent of the state’s 160-70 million and which stood at no. one as regards cases of atrocities against these sections are concerned), was third with 843 false cases. Punjab – the state with the highest proportion of SCs at 29 per cent of the population – has had just 52 false cases registered and last and not the least, Delhi is the last in the list with three cases in 2008.
A quick analysis of these figures shows that around 75 per cent of the cases have been reported from three states only. What does the marginal presence or near absence of other states in this breakup tell us ? Madhya Pradesh, which happens to be the state which has ‘consistently stood at no. 2 as regards atrocities against Dalits are concerned’ does not even find a mention the newspaper report. Of course, it does not mean that there were no false cases from the state. The point is that there is no uniformity in the number of false cases registered and nor are they directly proportional to the actual situation of Dalit atrocities as it exists in the particular state. Gross generalizations would be too simplistic in the case.
Secondly, the discussion around the alleged misuse of this act has another negative fallout. The question of more objective analysis of its implementation does not receive the prominence it deserves.
Take the recent case of Mirchpur ( district Hissar, Haryana) where the dominant castes ( namely the Jats) attacked the houses of the Valmikis in a preplanned and premeditated manner and burnt them with the district administration especially the police personnel turning a blind eye to this gory act (21 st April 2010). A handicapped girl Suman and her father Tarachand also died in the arson. A few of the arsonists were arrested by the police, but neither the S.H.O. or the Tehsildar, who were mute witness to this act were touched. Only when the issue snowballed into a major embarrassment for the Congress government at the centre with the parliament in session, were the infamous S.H.O. and the Tehsildar were put behind bars.
It is clear to even a layperson that despite the PoA act making it mandatory (article 4), to take action against the government officials for dereliction of duty, it required Ms Sonia Gandhi’s strong disapproval over the turn of events and Rahul Gandhi making a trip to the village, to take this step.
Any close watcher of the human rights situation in Haryana would vouch that this case is no exception. In fact, Haryana has been witness to a number of attacks on Dalits in the previous decade, many of which reached national headlines. People can narrate you incidents after incidents where an unholy alliance between a callous polity, inhuman law and order machinery and a desensitized civil society has made the life of dignity for the Dalits a challenging task in itself.
One still remembers the forcible expulsion of 250 Dalits from Harsoula, District Kaithal, Haryana (February 2003). The local landowning people, mainly the Jats, objected to the Dalits celebrating Ravidas Jayanti. And the ensuing fight culminated in the forcible expulsion of Dalits from the village, with the police once again turning into mute spectators.
Ms Sonia Gandhi, the then leader of the opposition, had even raised the issue in the parliament also. She had lambasted the then Chautala government – a partner in the NDA then – for its failure to provide security and safety to the Dalits. It has been more than six years that Congress itself wields power in the state but Dalits from Harsoula are still condemned to live outside their ancestral village, somehow managing their lives in Kaithal and other places.
These days there is much talk about ‘Internally Displaced Persons’ the world over. One does not know whether Dalits from Harsoula could be included in the list. In fact one can find many villages in Haryana similarly emptied of their Dalit population under one pretext or the other by the local dominant castes. One also comes across a village named ‘Devipuniya’ in the state which came up when Dalits from a village were similarly expelled from their village when Devi Lal happened to be the Chief Minister and P.L. Puniya, happened to be a well-known Dalit leader. As of now a majority of the Dalits in Mirchpur, who are camping in Hissar town are also contemplating leaving the village for good and shifting to a new location.
The National Human Rights Commission documents the state specific situation in very many ways. According to it, every year six Dalits are killed, twenty four Dalit women are raped and 51 houses of the Dalits are set on fire in Haryana ( Year 2002). Looking at the travails and tribulations faced by the Dalits at various levels most of which go unreported it can be construed that the figures presented by NHRC are just the tip of the iceberg. This is also evident from the no of cases registered under SC and ST ( Prevention of Atocities) Act 1989. While the number of cases registered were mere 32 in 1998, the figures shot up to 43 by the year 2003.
Apart from growing landlessness and continued denial of basic human rights the most disturbing thing is that social and political visibility of Dalits is minimal. It hardly makes any difference that they are around one fifth of the total population of the state (19.8%). The contrast looks much sharper if one looks at neighbouring UP where dalits are today the main fulcrum of the state politics.
Gohana, a town around 75 kms away from Delhi, had witnessed an organised attack on the Dalit (Valmiki) basti led by the son of the local BJP MP ( 31 August 2005) which had culminated in the burning down of around 50—60 houses of the Dalits. The attack was a fallout of the death of a Jat youth in a scuffle with the Dalit boys. The caste council ( Khap Panchayat) of the Jats had played a very dubious role in the whole affair. Here also the police which was in good strength did not act to stop the arsonists. Later it patted itself on the back as ‘no lives were lost’.
We had rushed to Gohana (4 th September 2005) as part of a fact finding team – comprising of writers, journalists, social activists – to get first hand details…Haunted houses, barren faces, fear still lurking in their eyes…only some old people or relatives of the inhabitants were visible there who were roaming there. None of those photographs which we had taken convey that people residing in those houses themselves undertook all that exercise supposedly to get compensation (as the experienced officers of the CBI ‘discovered’ in their enquiry later).
Making an editorial comment about the growing Dalit atrocities in the state some time back, The Tribune ( 30 th August 2007) had underlined how the state seems to be least bothered about the security and safety of the lives and properties of the Dalits. According to it, most of the time their houses come under attack, they are looted and burnt and the administration becomes active only when the damage is done. It also emphasized the fact that the Dalits are neither properly represented in the police and administration nor is any special drive conducted to cover the backlog.
The developments in Mirchpur bear witness to the fact that despite the prodding by the media there is no difference on the ground level situation. And denial of human rights to the Dalits (and the tribals) is a ‘national phenomenon’.
Recently the Supreme Court also expressed concern over the fact that in most of the cases of violence against Dalits, even the necessary investigations are not completed in stipulated time. It also asked the Solicitor General Mr Gopal Subramaniam to give concrete suggestions to the courts so that necessary orders are passed for effective implementation of law. ( Hindustan, 5 May 2010, SC-ST mamlon kee jaanch mein deri par chinta)
According to the courts, it is mandatory that such investigations are completed within three months of the cases being lodged against SC-ST act, 1989, by an officer not below the rank of DySP. The courts observed that in many cases the investigations linger on for more than three years which results in cases further getting delayed for years together. In a strong indictment of the functioning of the state machinery, when it comes to providing justice to the Dalits, it said that many of the states have not even bothered to establish special courts for speedy trials of these cases. The delay in completing necessary investigations, the absence of proper witnesses apart from many contingent factors results in acquittals of the accused in 75 percent of the cases.The Supreme Court bench concluded that delay in investigations results in denial of justice to the Dalits which in fact defeats the whole purpose of the law itself.
A much quoted detailed and systematic study of 400 judgements about cases filed under PoA act in different courts of Gujarat corroborates the observations of the Supreme Courts. The painstaking study done by Mr. Vajibhai Patel, Secretary of Council for Social Justice, who was once a pillar of the Dalit Panther movement in the state, 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 had presented 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 willfully 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 discussion around the alleged misuse of this act would remain incomplete if one leaves out the recent conviction in the case of Bathani Tola massacre. The Ara court in Bihar recently convicted 23 people for the massacre of 21 Dalits at Bathani Tola in Bhojpur in 1996.
The carnage occurred on July 11, 1996 when marauders of the Ranvir Sena ( a private militia of the upper caste landlords) stormed the hamlet in Bhojpur’s Sahar block and hacked to death 21 Dalits. A majority of the people killed were women, teenage girls and babies less than ten months old. However, much on the lines of the April 7 verdict in the 1997 Laxmanpur-Bathe massacre case, the police has pronounced Ranvir Sena supremo Brahmeshwar Singh “Mukhiya” the prime accused, an “absconder”. It is a different matter that this dangerous criminal has been in Ara jail since 2002. It may be added here that when Nitish Kumar, assumed reins of power in 2004, one of the first thing he did was to disband Justice Amir Das Commission when it was nearly ready with its report. This commission was appointed in the immediate aftermath of the Bathe massacre and had gone into great details about the political patronage which Ranvir Sena received from different mainstream political formations.
Expressing his clear disapproval of the way in which the Mukhiya continues to be a non-FIR accused the Special Public Prosecutor told the reporter “This clearly shows that both the police and the government are not interested in ensuring that justice is meted out.” (The Hindu, 7 th May 2010) The only explanation offered by the SP about this strange situation was that Brahmeshwar Singh did not stand trial as “certain court proceedings initiated against him were yet to be completed.”
Anyone familiar with the pace with which courts deal with cases before them and the tremendous burden they already have would tell you that it can take decades for the “certain court proceedings” to be completed and a day can arrive when, with all the witnesses to the case dead, Brahmeshwar Singh the mastermind of many a massacres may emerge from the jail unscathed and would be happy to ‘express full faith in the wisdom of the judiciary’.