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 campaigns strategy may have been an example of misguided politicking, both the UN Committee on the Elimination of Racial Discrimination (CERD) and the Special Reporter on Race have since made caste one of their central concerns. Governments have also taken up the issue bilaterally with India.
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. 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 offences 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 is unaware of its existence.
The Purpose Of The ActIn 1989, the Government of India enacted the Scheduled Castes and Tribes (Prevention of Atrocities) Act in order to prevent atrocities against SC/STs. The purpose of the Act was to prevent attrocities and help in social inclusion of Dalits into the society, but the Act has failed to live up to its expectations.
The Act came into force with effect from 30.1.1990. This legislation aims at preventing commission of offences by persons other than Scheduled Castes and Scheduled Tribes against Scheduled Castes and Scheduled Tribes. The Act provides for punishment for offences of atrocities committed against Scheduled Castes and Scheduled Tribes. Comprehensive Rules under the Act were notified in the year 1995, which inter-alia provides norms for relief and rehabilitation. The Act extends to whole of India except Jammu & Kashmir. The Act is implemented by the respective State Governments and Union Territory Administrations, which are provided due central assistance under the Centrally Sponsored Scheme for effective implementation of the provisions of the Act.
Offenders, Victims And Offences Under The ActAny person who is not a member of a scheduled caste or a scheduled tribe and commits an offence listed in the Act against a member of a scheduled caste or a scheduled tribe is an offender.
The victim is a member of a scheduled caste or a scheduled tribe against whom any of the following offences is committed by the offender:
1. Forced to eat or drink an offensive or uneatable substance;
2. Caused annoyance, injury or insult by any excreta or waste matter being dumped in his premises or neighborhood;
3. Paraded naked or with painted face or body;
4. Wrongfully deprived of cultivation of his land;
5. Wrongfully deprived of his rights over any land, premises or water;
6. Forced to do beggary or work as a bonded labourer;
7. Prevented from exercising his right to vote or according to his wishes;
8. Subjected to false legal proceedings;
9. Caused injury or annoyance by a public servant on the basis of false information given to him;
10. Deliberately insulted and humiliated in public view;
11. A woman who is sexually assaulted;
12. Deprived of his right to clean drinking water;
13. Deprived of his right of passage to a public place;
14. Forced to leave his house or village;
15. Falsely implicated in a criminal case which might result in his imprisonment or execution;
16. Intended harm or injury by burning a place of his dwelling or worship;
17. Wrongfully caused injury or subjected to any other offence by a public servant
Besides this section 2 of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled tribe:
(i) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death;
(ii) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine;
(iii) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;
(iv) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine;
(v) commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
(vi) knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence; or
(vii) being a public servant, commits any offence under this section, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence.
Nature And Punishments For An Offence Under This ActAll offences listed in the Act are cognizable. The police can arrest the offender without warrant and start investigation into the case without taking any orders from the court.
The Act prescribes both minimum as well as maximum punishment. The minimum in most cases is six months imprisonment while the maximum is five years sentence and with fine. In some cases the minimum is enhanced to one year while the maximum goes up to life imprisonment or even death sentence.
Section 4 of the act deals with punishment for neglect of duties by a public servant. According to this section If a public servant, who is not a member of the Scheduled Caste or Scheduled Tribe, deliberately neglects his duties, which he should perform under the Act, he is liable for punishment with imprisonment up to six months.
Section 5 provides enhanced punishment for subsequent conviction. Whoever, having already been convicted of an offence under this Chapter is convicted for the second offence or any offence subsequent to the second offence, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence.
Constitution of Special CourtsChapter 4 of the act clearly states about the constitution of special courts for hearing cases on atrocities against scheduled caste and scheduled tribes. For the purpose of providing for speedy trial, the State Government shall with the concurrence of the Chief Justice of the High Court, by notification in the official gazette, establish in each district a Court of Session to be a Special Court exclusively to try the offences under this Act. Provided that in respect of districts where there are no atrocities against Scheduled Castes and Scheduled Tribes at all the Government may, with the concurrence of the National Commission for Scheduled Castes and Scheduled Tribes, either exempt such district or districts from this provision or combine such district(s) with any other neighbouring district(s) for the purpose of establishing exclusive special courts. The special courts set up under this provision shall not be the same as any of the existing courts of session. The exclusive Special Courts shall try offences under this Act on day-to-day basis. Prof. Jaffet (Department of Sociology, National Law School of India University, Nagarabhavi, Bangalore) opines that exclusive special courts are functioning better than the normal sessions court turned special courts in terms of conviction rates.
The act further provides that for every Special Court, the State Government shall, by notification in the Official Gazette, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court.
P.S Krishnan, Former member secretary, National commission for backward classes recommends that for every Special Court, the State Government shall, by notification in the official gazette, appoint a Police Officer as Investigating Officer exclusively for the purpose of investigation in respect of cases of offences under this Act.
Investigation And RehabilitationSection 23 of the Act, authorizes the Central Government to frame rules for carrying out the purpose of the Act. If was drawing power from this section that the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 were framed. According to Rule 7(1) , investigation of offence committed under the SC/ST Act cannot be investigated by an officer not below the rank of Deputy Superintendent of Police (DSP). In regards to this various High Courts have vitiated the trail based on the above rule and, therefore set aside the order of conviction.
The Andhra Pradesh High Court, in D. Ramlinga Reddy v. State of AP, took the position that provisions of Rule 7 are mandatory and held that investigation under the SC/St Act has to be carried out by only an officer not below the rank of DSP. An investigation carried out and charge sheet filed by an incompetent officer is liable to be quashed.
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.
According to the preamble of the SC/ST Act, it is an Act to prevent the commission of offences of atrocities against SC/STs, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences.
The Madhya Pradesh High Court also had the same view and observed in the case of Dr. Ram Krishna Balothia v. Union of India that the entire scheme of the SC/ST Act is to provide protection to the members of the scheduled castes and scheduled tribes and to provide for Special Court and speedy trial of the offences. The Act contains affirmative measures to weed out the root cause of atrocities, which has denied SC/STs basic civil rights. The Act has addressed the problem the regarding the dispensation of justice, but what the failed to deal with is the problem of rehabilitation.
There is mention of rehabilitation under Section 21(2)(iii), but there are no provision addressing the same. As it has been stated earlier that victims of atrocities are on a different level when compared to victims of other crimes, hence there should be special provision for the same. According to the report submitted by the National Commission for Review and Working of the Constitution victims of atrocities and their families should be provided with full financial and any other support in order to make them economically self-reliant without their having to seek wage employment from their very oppressors or classes of oppressors. Also it would be the duty of the State to immediately take over the educational needs of the children of such victims and provide for the cost of their food and maintenance. SC/STs constitute 68 percent of the total rural population.
According to the 1991 Agricultural census a large number of SC/STs are marginal farmers compared to the other sections of the society and because of this the number of cultivators are going down. In other words the landlessness is increasing at a faster rate among SC/STs. At the same time the number of SC/ST workers as agricultural labourer is increasing at a faster rate when compared to other sections of the society. This basically implies that after losing their land holdings SC/ST cultivators are becoming agriculture labourers. Loss of land, on the one hand, is caused by atrocities making the more vulnerable. This in turn fuels and promotes continuance of atrocities and untouchability. Marginalisation is one of the worst forms of oppression. It expelles a whole category of people from useful participation in the society and therefore potentially subjected to material depravation and this could even lead to extermination. Moreover, this leads to the state of powerlessness which perhaps is best described negatively; the powerless lack authority, status and a sense of self.
Moreover, every right has three types of duties:
• Duties to avoid deprivation.
• Duties to protect from deprivation
• Duties to aid the deprived.
Though the SC/ST Act does cover the first two duties but totally ignores the third one; duty to aid the deprived. Hence, it is necessary to make the SC/STs self dependant
How Sucessful Is The Act And What Are The Problems With The Act?Dr. Jogan Shankar described the Act as an Act with many teeth but which seldom bites. Although the Prevention of Atrocities Act (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.
Besides these the other main deficiencies in the Act is Section 14(2), which merely requires the State governments to specify for each district a Sessions Court to be a special court to try atrocities, contradicting the very purpose "of providing for a speedy trial". Merely merely calling an existing court a special court cannot speed up a trial. The law ought to have provided for a special court in each district exclusively to try cases of atrocities, on a day-to-day basis, with corresponding provisions for an exclusive special public prosecutor and a special Investigating Officer. This lacuna lays the foundation for a situation of crime without punishment. Among the other major deficiencies in the Act are omission of social and economic boycott as a crime, non-provision of death penalty as in the Indian Penal Code, non-availability of protection for the victims by way of the externment of possible perpetrators, and the failure to cover converts to Christianity ( Dalit Christians)
*** The authors are 8th semester students of National University of Advanced Legal Studies, Cochin, Kerala. We have conducted a one month field work and research about this topic and have met various experts in this area. The research had special emphasis to the state of Karnataka. We collected the crime statistics and other related information.
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