Lapses and lacunae

Decades after the Atrocities Act 1989 and the Rules 1995: Facts about enforcement

Continuing atrocities

• Despite the enactment of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act to protect the lives and security of the scheduled castes and scheduled tribes (SCs and STs), from 1995 to 2007 less than one-third (30.7 per cent) of the crimes committed against SCs/STs across India were registered under the provisions of the act.
• As per the National Crime Records Bureau (NCRB) data, 1,21,464 (only one-third) of a total of 3,71,942 crimes against SCs and 14,263 (only one-fifth) of a total of 69,482 crimes against STs were registered under the act. It also states that the annual average of crimes registered against SCs/STs is 33,956 crimes while the daily average of crimes registered against SCs/STs is 93 crimes.
• If we look at the extreme forms of atrocities, a breakdown of the 4,41,424 registered crimes against SCs/STs during 1995 to 2007 includes 9,593 cases of murder, 61,168 cases of hurt or grievous hurt, 20,865 cases of rape, 4,699 cases of arson, 4,484 cases of kidnapping and 10,512 cases of ‘untouchability’ practices.
• A study of 500 cases of violence against Dalit women across Andhra Pradesh, Bihar, Tamil Nadu and Uttar Pradesh between 1999 and 2004 revealed that the majority of the women faced several forms of violence from either or both perpetrators in the general community and the family. The most frequent forms of violence were verbal abuse (62.4 per cent), physical assault (54.8 per cent), sexual harassment and assault (46.8 per cent), domestic violence (43 per cent) and rape (23.2 per cent).

The police

• As per the NCRB, 67 per cent of crimes committed during 1992 to 2000 and 64.9 per cent of crimes committed during 2001 to 2007 were not registered under the act. A study covering 11 atrocity-prone areas in Gujarat also exposed that between 1990 and 1993, 36 per cent of atrocities cases were not registered under the act. In 84.4 per cent of the cases where the act was applied, the cases were registered under wrong provisions with a view to concealing the violent nature of the incidents.
• A large number of cases have been closed by the police for various reasons. As per the NCRB, the police closed a substantial 21.7 per cent of the cases registered under the act during 1997 to 2007.
• As per the NCRB, investigation has been completed in only 1,34,534 out of a total of 1,76,397 cases, which includes the pending cases. A charge sheet has been submitted in only 97,341 of these cases and there are 37,193 cases pending charge-sheeting even 10 years after investigation.
• The Andhra Pradesh high court, in an interim order in writ petition 1019 of 2006 filed by Sakshi Human Rights Watch, Andhra Pradesh, observed that as per the statistics furnished by the director general of police regarding cases registered under the act: one case has been pending investigation for almost six years, 53 cases for between three to five years, 190 cases for almost two years and 805 cases for about one year. In response to this writ petition, a counter-affidavit filed by the police reveals that during 1995 to 2006, 21,000 cases were registered under the act. Of these, more than 14,000 were pending without a charge sheet being submitted even though the act stipulates that the investigation must be completed within 30 days of the FIR being filed.
•  A study covering 11 atrocity-prone districts in Gujarat during 1990 to 1993 showed that the time lag between the registration of murder cases and arrest of the accused was 121.2 hours; for rape cases, it was 532.9 hours; and for grievous cases, it was 862.4 hours. A study in Tamil Nadu revealed that out of 371 cases of atrocities for which data was available on arrests, in 25.6 per cent of the cases, the accused were never arrested while in only 25.9 per cent of the cases were all the accused arrested immediately after the registration of the FIR or on the next day. In 20.7 per cent of the cases, the arrests occurred at any time from a week to one year after the incident had taken place. Further, in 23 cases (six per cent), the accused succeeded in getting anticipatory bail from the high court.

The judiciary

• Given that the trial pendency rate is roughly the same for all crimes committed under the Atrocities Act, the Protection of Civil Rights Act 1955 and the IPC, reality shows no ‘speedy trials’ for crimes committed under the Atrocities Act. Also, in contravention of Section 14 of the act, special courts have still not been set up in 133 of the 612 districts/divisions across India.
• As per the NCRB, at the end of 2007, 99,659 cases in crimes against SCs/STs (79 per cent) remained pending for trial in criminal courts across the country, showing no significant improvement over the trial pendency rate (82.5 per cent) in 2001. Similarly, the trial pendency rate for crimes registered under the act did not decrease below 80 per cent during 1997 to 2007, averaging 82.9 per cent.
• As per the NCRB, the conviction rate under the act in 2007 was the fourth lowest (26.1 per cent) as compared with cases under more than 20 special and local laws (SLL). In fact, the average conviction rate under the act during 2003 to 2007 stood at just 25 per cent as compared to 72 per cent for other SLL cases.

Rights of victims and witnesses

• In spite of the provisions in the act, instances where victims and witnesses do not receive immediate relief, compensation and rehabilitation, and travelling and maintenance expenses, are very common. Wherever this phenomenon has been studied, be it Andhra Pradesh, Gujarat or Tamil Nadu, the figures show that the government is not paying adequate relief and compensation. In spite of the recommendations by various commissions, the National Human Rights Commission (NHRC) and the National Commissions for Scheduled Castes/Scheduled Tribes (NCSC/ST), relief and compensation is hardly ever paid to the victims of atrocities unless the case receives a lot of publicity.
• Both the ministry of social justice and empowerment’s annual report of 2006 on the implementation of the act as well as the NHRC’s 2004 report on prevention of atrocities against SCs observed that very few atrocity victims receive legal aid, which leaves them to the ‘due process of law’ without the help of a lawyer.

Kherlanji, September 2006

Implementing mandatory provisions of the act

• State governments must make known the atrocity-prone districts so that they can focus their resources on prevention of atrocities. Only 12 out of 35 states/union territories (UTs) have declared atrocity-prone districts.
• Whereas SC/ST Protection Cells are necessary to ensure public order and tranquillity, a Contingency Plan is necessary to implement the act. But only half of the states/UTs have set up an SC/ST Protection Cell and only nine states have created a Contingency Plan
• Nomination of nodal officers and appointment of special officers are necessary to coordinate the implementation of provisions of the act. But five states have not yet nominated their nodal officers while only 14 states have appointed special officers.
• One-third of the states/UTs have not yet set up the district-level and state-level Vigilance and Monitoring Committees. Even the union minister for social justice and empowerment and state ministers agree that regular meetings are not being organised so there is still a need for more meetings of the Vigilance and Monitoring Committees.
• The union ministry of social justice and empowerment has mostly not been adhering to its role of submitting an annual report, mandatory under Section 21(4) of the act. Its 1991-92 report was placed before Parliament in 1998, the finalisation of annual reports of 1993 to 1995 was delayed by almost four years, placing of the 2000 annual report was delayed by two years and the last annual report it placed before Parliament was in 2006.

Recommendations

• Appoint high-level committees at the centre and in the states/UTs to review the implementation of the act, assess the realisation of its objectives and take appropriate and speedy action for strengthening the act and for effective implementation in the future
•  Direct the concerned central and state ministries dealing with implementation of the act and rules to evolve ways and means for formulating and including the required legal amendments as well as for their effective operation
• Set up exclusive special courts, exclusive public prosecutors and exclusive investigators for the speedy trial of cases under the act.
• Include additional crimes which SCs and STs are subjected to but which do not figure in the present list of offences in the act, such as social and economic boycotts and false counter-cases.
• Delete expressions such as “intent”, “on the ground”, “wilful”, etc from various sections of the act, which give leeway to the police and judiciary to weaken cases of atrocities through subjective or arbitrary interpretations of the act.
• Add a new chapter in the act to deal with the rights of victims and witnesses thereby explicitly granting them various citizen rights with regard to atrocity cases.
• Amend the act to explicitly bring in all types of negligence by public servants at various stages in their handling of atrocity cases
• Enhance punishment for offences of atrocities under the act to be on par with the Indian Penal Code as well as based on the nature and gravity of the offences so as to ensure its deterrent effect
• Amend the definitions of “scheduled castes” and “scheduled tribes” in the act so as to add all Christians or Muslims belonging to any of the castes in the Schedule, all ethnic minority communities subjected to atrocities on the basis of their ethnicity and SC/ST migrant labourers on the basis of their caste/tribal status in their state of origin.
• Give priority attention to accepting and implementing the recommendations of national and state commissions as well as civil society organisations working to defend and promote the rights of SCs and STs.

Courtesy: National Campaign on Dalit Human Rights; www.ncdhr.org.in

Archived from Communalism Combat, November 2011,Year 18, No.161-Cover Story