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Throttling society

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Dr. Sukumar Azhikkode addresses satyagrahis, abandoning mike, in protest against police restriction on mike usage      Courtesy: Jayakrishnan CK, Mathrubhumi  

 
In Kerala the night time ban on loudspeakers is seen as an attempt to silence the masses

Cultural Kerala has risen in protest against the July 18 verdict of the Supreme Court banning the use of loudspeakers in residential areas from 10 p.m. to 6 a.m. except in case of "public emergency".

Jurist VR Krishna Iyer has vehemently decried the general nature of the verdict. "Pleasurable sounds with aesthetic orientation" like music and related artistic activities should not be stifled. Remarkably prescient, he pointed out the distinct danger of the misuse of this provision by authorities, especially the police. "Never should constabulary control, often vulnerable to corruption, be entrusted with police power."

This insight is relevant in the context of a recent incident. Dr. Sukumar Azhikkode, well known as the social conscience of Kerala, forsook the mike in protest against a police order restricting permission to half an hour. This happened on September 13, when he inaugurated the satyagraha against the ban on common salt organised by Jana Arogya Prasthanam (JAP, People’s Health Movement) outside the district medical officer’s office in Kochi. The police justified the restriction on the grounds that the venue was a public place. The licence mentioned that the decision was based on a government notification. "I have never been so humiliated in my life. Freedom of expression is guaranteed by our Constitution," said Dr. Azhikkode. Chairman of JAP, Dr. Jacob Vadakkanchery has resolved to challenge the verdict both by flouting the ban as well as contesting it legally with the support of eminent political and social activists.

The Performing Artists Coordination Kerala (PACK), an apex body of aggrieved artists with veteran stage personality Ahwan Sebastian as general convenor, has already filed a review petition in the Kerala high court. According to PK Sunil Kumar, state secretary of the Musicians Welfare Association, one-and-a-half lakh families of instrument players and singers would be affected. In all, three lakh families of performing artists would be robbed of their livelihood. This sentiment is echoed by KJ Thomas, joint secretary of Bankment’s Club, Kozhikode, a premier organisation with a vibrant cultural calendar, who also fears dubious intent to promote only religious functions, further fuelling religiosity. His opinion is shared by VS Anilkumar, progressive writer and academician, who also sees in it a conspiracy to broaden spaces of silence in society, which will facilitate the unchallenged implementation of the globalisation agenda of neo-liberal polity. He also equates this with the deliberate American killing of an Al-Jazeera journalist in Iraq, thus silencing uncomfortable voices of protest.

Doyen of Malayalam theatre, KT Mohammed views it as an assault on the free exercise of the beauty and strength of sound, which is an inalienable right of the people. Sara Joseph, Kendra Sahitya Academy award winner and social activist, is of the opinion that the plight of the five lakh odd families who would be affected by the ban, should be addressed. While political and religious functions can be thus restricted, artistic expression should be exempted. "In the present dispensation the tendency seems to be to curb all essential rights enjoyed by the masses, whether it is the right to strike or the right to organise peaceful demonstrations. The present curb on the use of loudspeakers is yet another glaring example of this wanton attempt," says Dr. TK Ramachandran, cultural critic and coordinator of Secular Collective, Kozhikode.

Another stark human face of the ban is highlighted by PK Assainar, Malappuram district president of the Sound Service Association, who reveals that more than two lakh people directly and indirectly employed by this sector would be affected. Already the ban on advertising announcements by commercial establishments has rendered people jobless. Lottery ticket-sellers are permitted on the grounds that they operate at the low decibel level of hand-held megaphones. Increasingly, people from the light and sound field are now hiring themselves out to mobile displays of commercial establishments in pick-up vans, which according to him, and in flagrant violation of the law, are not even insured. The night cap on loudspeakers will adversely affect their prospects, as most of the religious functions and fairs are late night or even all night celebrations.

The consensus thus seems to be that this ban would lead to throttling society, since it prevents the vigorous and continued articulation of dissent, which is the cornerstone of democracy.

Archived from Communalism Combat,October 2005 Year 12    No.111, Cover Story 2

 

Decibel democracy

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The volume of the marketplace will ultimately determine the decibel levels on our streets

Not many remember this story. In January 1998 a 13-year-old girl was raped but her cries for help were drowned by blaring neighbourhood loudspeakers. The raped girl later committed suicide by setting herself on fire. The story did move Mumbai engineer Anil Mittal who moved the Supreme Court of India to see if Indian law had anything in it to prevent the girl’s tragedy being repeated.
 

Many others had long wished they could do something about fortnight-long festivals that lasted deep into the night, often into the early hours of the morning, even as children struggled to mug up answers to questions they were expecting in the examinations the next day, or perhaps even worse, patients for whom a break in sleep because of the cacophony could spell the difference between life and death.
 

The apex court was indeed moved by Mittal’s arguments. "No one shall beat a drum or tom-tom, or blow a trumpet or beat or sound any instrument, or use any sound amplifier at night (between 10 p.m. and 6 a.m.) except in public emergencies," Chief Justice RC Lahoti ruled. The Chief Justice said the case raised "certain issues of far-reaching implications in day-to-day life of the people in India." That was then.
 

Earlier this month, the court seemed to have struck at its own decision, for the moment at least, allowing Gujarat’s now world famous Navratri garba extravaganzas to go on till midnight, and in their wake, also allowing the Ram Lilas, which in urban India used to last till almost midnight.
 

If any one else has any other religious festival over the next few months, they can blare their music systems and light their crackers to their hearts’ content or till their eardrums burst or until the Supreme Court finally decides on the issue once and for all. Once the government provides it with the latest medico-legal information on the harm that noise pollution does to the human brain and to the environment in general.
 

As a civil society and freedom of faith activist interested in several cases currently before the Supreme Court, I would be the last person to try and antagonise the highest court in the land with a sarcastic commentary on its latest pronouncement. Christians in general, and the church establishment in particular, are particularly wary of the judicial processes in this country, partly because for want of legal education we do not fully understand the intricacies of the system of judicial equity in a democracy, as also the fact that so few of us are in the practice of law. Afraid that courts may collectively take umbrage and rule against us in a myriad cases, we have always been the first to profess our absolute trust in the judicial system of India.
 

But despite this, I must dare explore the contours of this decibel democracy as established by law. The impact of the first ruling – the ban on late nights after 10 p.m. – was not just about deflating the gusto with which Durga Puja is celebrated in all Bengali enclaves from Tripura to Jammu and Jaisalmer, or toning down the Ganesh Puja in which Mumbai, Pune and Hyderabad vie with one another for the title of Tallest Idol Immersion in the Smallest Water Body Capital of the World. It had an impact on practitioners of all faiths.
 

The Muslims, already under pressure for the five-times-a-day loudspeaker azan, muffled Ramzan festivities before sehri, the pre-dawn breakfast. The Sikhs were not really affected. All their festivities are held in broad daylight, as are Sikh weddings.
 

The Christians faced a peculiar problem. They are a community with the least number of holidays recognised by government. Easter is always on a Sunday, a holiday, but for the traditionalists, Easter dawns at midnight intervening between Holy Saturday and Easter Sunday. But even if Easter is always a Sunday holiday, there is no way you can usher in Jesus’s birthday in the afternoon of December 25. Christmas for us begins at midnight – when the babe was born in the manger to the lowing of cows and the braying asses, the choir of angels singing in bright starlight out in the fields – a cacophony if ever there was one!
 

Archbishops in several metros did hastily postpone Christmas Masses to the morning of December 25 and ordered their priests to follow suit, but many a brave mother superior and parish priest defied archbishop and superintendent of police alike to hold the Midnight Mass in a tent outside the small church.
 

Perhaps this year Masses will indeed be held at midnight, even in Mumbai. But I digress.
 

The arguments were not located in the manger, but in the marketplace. When the first ban came, Sivakasi, the firecracker capital of the world, and otherwise a small town in Tamil Nadu, cried tears of blood, estimating losses running into billions of rupees. But they, poor home-grown sods, lacked the advocacy strength of their non-resident Indian and expat-driven garba industrialists of Gujarat.
 

NRIs, expats and homebodies, million-rupee-a-night vocalists and billion- dollar-a-season manufacturers of colourful cholis and rustling ghagras moved into action, commanded brilliantly by Narendra Modi, chief minister of Gujarat and currently its chief ambassador in the West where he otherwise may not visit because they refuse him visas till he serves a jail term for supervising the massacre of Muslims in 2002.
 

Taking India, the UK and the US into account, as well as the still existing enclaves in Africa and the Caribs, the Navratri garba is indeed a billion-dollar industry.
 

The prayers, if not the advocacy skills, of the Navratri garba industry have carried the day, the apex court has granted them an exemption till it comes up with a judgement without the mistakes it admits it may have made in the last one.
 

Until such time, Modi exults. And democracy may be gauged in decibels.

Archived from Communalism Combat,October 2005  Year 12    No.111,  Cover Story 3

 

Judicial slip-up

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With growing awareness in the country about the hazards of noise pollution, the Ministry of Environment and Forests of the Government of India framed a draft of Noise Pollution (Control and Regulation) Rules, 1999 inviting objections and suggestions from the public. The following year the Noise Pollution (Regulation and Control) Rules, 2000 came into force.

The regulations asked state governments to demarcate areas under their jurisdiction into industrial, commercial, residential or silence areas/zones and to ensure that the noise level in each of these areas stayed within the outer limits specified by the ministry. At the same time, it was also stipulated that no one could use loudspeakers and public address systems without prior permission from relevant authorities. It was also provided that "A loudspeaker or a public address system shall not be used at night (between 10.00 p.m. to 6.00 a.m.) except in closed premises for communication within"

Certain amendments were made in the Noise Rules in November 2000 and again in 2002. The latter gave some leeway to state governments: "the State Government may… permit use of loudspeakers or public address systems during night hours (between 10.00 p.m. to 12.00. midnight) on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year".

Earlier, in a 1998 writ petition filed in the Supreme Court (see main copy), the main prayer was for a court order directing all state governments to rigorously enforce the existing laws for restricting the use of loudspeakers and other high volume noise producing audio-video systems "so that there may not be victims of noise pollution in future".

In 2003, the apex court later attached to the writ petition a special leave petition that questioned the discretion given to states to relax the night-time ban on loudspeakers on the plea that without proper guidelines this would defeat the very purpose of the noise control rules.

In its judgement of July 18, 2005, the division bench of Chief Justice RC Lahoti and Justice Ashok Bhan made certain observations and issued some specific directions:

 

Observations:

  • Noise pollution is a serious issue as it can be related to the constitutional right to life (Article 21). The right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity… Anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him.
  • Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute… Article 19(1)A cannot be pressed into service for defeating the fundamental right guaranteed by Article 21.
  • Noise is more than just a nuisance. It constitutes a real and present danger to people’s health.
  • The Legislature and the Executive in India are (not) completely unmindful of the menace of noise pollution. Laws have been enacted and Rules have been framed by the Executive for carrying on the purposes of the legislation. The real issue is with the implementation of the laws. What is needed is the will to implement the laws.
  • The Supreme Court in Church of God (Full Gospel) in India vs. KKR Majestic Colony Welfare Assn., (2000) 7 SCC 282, held that the Court may issue directions in respect of controlling noise pollution even if such noise was a direct result of and was connected with religious activities. It was further held: "Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of others, nor does it preach that they should be through voice amplifiers or beating of drums. In our view, in a civilised society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted".
  • Several interlocutory applications have been filed in this Court, wherein it was pleaded that restriction on bursting of firecrackers in the night should be removed during the Diwali festival. Similar relaxation was demanded for other festivals… Indian society is pluralistic. People of this great country belong to different castes and communities, have belief in different religions and customs and celebrate different festivals. We are tolerant for each other. There is unity in diversity. If relaxation is allowed to one there will be no justification for not permitting relaxation to others and if we do so the relaxation will become the rule. It will be difficult to enforce the restriction.

 

Highlights, court directions:

  • There shall be a complete ban on bursting sound emitting firecrackers between 10 p.m. and 6 a.m. It is not necessary to impose restrictions as to time on bursting of colour/light emitting firecrackers.
  • No one shall beat a drum or tom-tom or blow a trumpet or beat or sound any instrument or use any sound amplifier at night (between 10. 00 p.m. and 6.a.m.) except in public emergencies.
  • The peripheral noise level of privately owned sound system shall not exceed by more than 5 db(A) than the ambient air quality standard specified for the areas in which it is used, at the boundary of the private place.
  • No horn should be allowed to be used at night (between 10 p.m. and 6 a.m.) in residential area except in exceptional circumstances.
  • There is a need for creating general awareness towards the hazardous effects of noise pollution. The State must play an active role in this process. Special public awareness campaigns in anticipation of festivals, events and ceremonial occasions whereat firecrackers are likely to be used, need to be carried out.
  • The States shall make provision for seizure and confiscation of loudspeakers, amplifiers and such other equipments as are found to be creating noise beyond the permissible limits.

On the eve of Ganeshotsav, the Supreme Court turned down the plea of the government of Maharashtra for relaxation in the night-time ban on loudspeakers. But in response to a petition from the Gujarat government, the Supreme Court passed a further order on October 3. The apex court’s attention was drawn to the fact that under sub-Rule(3) of Rule 5 of the Noise Control Rules, 2002, state governments have the discretion "to permit use of loud speakers or public address systems during night hours (between 10.00 p.m. to 12.00 midnight) on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year".

It was further contended that since in its July 18 judgement the apex court had not specifically upset the division bench judgement of the Kerala high court and had also not even otherwise expressed and recorded any specific opinion on the constitutional validity or otherwise of sub-Rule(3), the state governments could exercise the power conferred by sub-Rule(3) of Rule 5.

Admitting the point made, the court agreed to re-open the case for fresh hearing to the limited extent of examining the constitutional validity of sub-Rule(3). Until then, Rule 5 would remain in force. The court once again refused the plea for allowing the bursting of firecrackers on Diwali.

Unfortunately, the failure of both the government of Maharashtra and the apex court to refer to sub-Rule(3) of Rule 5 earlier, and the concession of the point when raised by the Gujarat government subsequently has, however, reintroduced the element of resentment and competitive religiosity and taken some of the shine off the widely welcomed Supreme Court ruling of July 18.

The Best Bakery Case

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Where things stand today

Nine months after charges were framed in the famed Best Bakery case, the penultimate stage of the re-trial has been reached. As we go to press, a total of 75 prosecution witnesses have been examined of which only seven have turned hostile. Currently, the cross-examination of the investigating officer (IO), PP Kannani by the defence counsel, is on.
 

Barely one month after the trial began on October 4, 2004 at the Mazgaon Court in South-Central Mumbai, serious attempts to derail the due process of law were made when key star witness in the trial, Zahira Sheikh turned hostile for a second time and hurled allegations against us (see CC, November 1984). Six months after those unfortunate developments, where does this trial stand today?
 

With 75 witnesses and evidence running into a few thousand pages, a genuine appreciation of evidence would only be possible after defence witnesses have been called and arguments have been made by both the prosecution and the defence. Until that stage is reached, which looks to be a few months away, an appraisal of the proceedings so far will help bring our readers up to date.
 

One of the key issues raised by the Supreme Court in its historic verdict of April 12, 2004 (see CC, April 2004) was about the conduct of the prosecution during the trial in the fast track court in Vadodara. Some key witnesses, bakery workers who were all eye-witnesses, were not examined in the Vadodara court and surprisingly, relatives of the accused were called in as defence witnesses. Of the 74 witnesses, 34 turned hostile in Vadodara.
 

Apart from the fact that four independent eye-witnesses, three bakery workers and Yasmin Sheikh, Zahira Sheikh’s sister-in-law, identified key accused by face and name, the prosecution in the re-trial has managed to bring a host of documented material on record as evidence.
 

For example, the fact that the police as the investigating agency in the Best Bakery trial treated Zahira Sheikh’s statement made before senior officials and the IO on March 2, 2002 as the First Information Report (FIR) in the case. And that there is clear evidence to show that she had named nine accused in the first instance and five more later, is also a case in point. The fact that this statement was treated as the FIR and given a Case Report – CR number has been brought as evidence through documents in the re-trial. Moreover, this FIR was filed before the magistrate as required under law, and a Special Report on the Best Bakery case also faxed from the Control Room at Vadodara on March 3, 2002. There are detailed ledger entries of this fax having been sent through the appropriate channels on that date.
 

What this evidence establishes is that in the mass and compounded crimes committed by the mob gathered at Best Bakery on the night of March 1, 2002 right until the next morning, Zahira Sheikh was treated as the chief complainant by the investigating authorities. While the evidence of Yasmin Sheikh was being recorded, she stated that the police were recording a video of the events on the morning of March 2. This was, in fact, an official video recording of the rescue operations being conducted by the police at Best Bakery. This video, which was brought in as evidence after the videographer was also examined, gives a graphic view of the tragedy that unfolded. Zahira Sheikh and her family are shown in a traumatised condition, including her maternal grandmother who was on the terrace and is shown in the video being helped down by fire brigade personnel. A distraught Yasmin is seen with her little daughter beside husband Nafitullah, who has been brutally attacked. As it played, the video image of a baby whose leg had been ripped off chilled the courtroom.
 

A stir was created during the re-trial when former freelance filmmaker Pankaj Shankar (now with Doordarshan) offered to give testimony before the re-trial court because he had interviewed Zahira and her family in April 2002, a month after the tragedy. Examined as a prosecution witness, Shankar’s testimony could also provide a valuable insight into events since it depicts Zahira looking straight into the camera and naming the accused, and her brother Nafitullah stating, "Sab ko jaanta hoon, sab ko pahachanta hoon (I know and recognise all of them)."

Apart from the fact that four independent eye-witnesses, three bakery workers and Yasmin Sheikh, Zahira Sheikh’s sister-in-law, identified key accused by face and name, the prosecution in the re-trial has managed to bring a host of documented material on record as evidence

Documentary evidence brought on record by the prosecution includes detailed medical entries made regarding the victims and those who survived with doctors, firemen, policemen, panch witnesses, etc. all being examined.
 

The prosecution led its case in the Mumbai re-trial court with the evidence of key eye-witnesses who had not received summons or who did not appear in Vadodara. Tufel Ahmed Sheikh stepped into the box as the first prosecution witness and identified seven accused by face. Tufel, who was injured by a sword on the back of his head, both sides of his chest, left arm, right leg (with burns) and left leg, identified the persons who assaulted him on the morning of March 2, 2002 as: Sanjay R. Thakkar, as forcing the victims down from the terrace, tying their legs and hands; Ravi Rajaram Chavan, also making them get down; Dinesh P. Rajbar as seen with a mashaal (flame torch) on the night of March 1, 2002 shouting slogans; Bahadur Singh alias Jitu Chavan running towards Best Bakery with a mashaal and sword in hand; Suresh Vasava, seen running towards the Bakery with a sword and a mashaal; Sanabai Baria, on the next morning, making victims get down, tying their legs and hands and assaulting them; and Kamlesh Tadvi, in the morning, seen standing with those gathered.
 

Following Tufel, Raees Khan Pathan, Shehzad Khan, Yasmin Sheikh, and Shailun also identified some of the accused and gave an insight into how the attacks had unfolded that fateful night.
 

Shehzad Khan, another worker at the Best Bakery had appeared before the fast track court in Vadodara. He was traumatised by the atmosphere in the court with the huge presence of persons from Hanuman Tekri and their leaders. Without giving him a fair chance to testify, the judge declared him of unsound mind, a fact that drew mention from the apex court in its famous judgement. In the special leave petition filed by Zahira Sheikh with the CJP in the Supreme Court, Shehzad’s affidavit recording events as he remembered them had also been filed.
 

Ironically, this bakery worker was in the box on November 3, 2004, the day of Zahira Sheikh’s infamous press conference in Vadodara. The same afternoon, Shehzad identified 12 accused by face and name including: Raju Baria, Mahendra V. Jadhav, Pankaj V. Gosai, Jagdish C. Rajput, Shailesh A. Tadvi, Kamlesh B. Tadvi and Ravi Rajaram Chavan. In addition, he identified accused Dinesh Rajbar as assaulting him with a sword, Sanjay Thakkar as extorting money from him before attacking him, Jitu Chavan with a sword, Sanabhai with a sword and Suresh Vasava with a sword. Similarly, five accused were identified by Raees Khan, another bakery worker, and another five by Yasmin Sheikh.
 

Apart from identification of the accused, witnesses have identified the presence of other surviving and dead victims at the site of the incident as well as the weapons used in some of the attacks.
 

When the Supreme Court ordered the re-trial on a day-to-day basis, the Mumbai court was directed to conclude the trial by December 31, 2004. The unfortunate developments related to Zahira Sheikh and her family resulted in their cross-examination stretching over two months. The Mumbai court, which had earlier requested an extension until December, has since asked for and been granted a second extension until September 31, 2005. It is to be hoped that by then at the latest this historic trial, a re-trial, will conclude.

Archived from Communalism Combat, June 2005 Year 11    No.108, Cover Story 3

Pay up!

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Both State and non-State actors are culpable

In two or three distinct legal actions arising out of the Gujarat carnage of 2002, the state of Gujarat, its chief minister, Narendra Modi and outfits like the BJP, the RSS and the VHP have been asked to accept financial liability for the death and destruction, injury and loss of livelihood caused during the carnage of 2002.
 

In the first major writ petition on the issue of compensation, (Special Civil Application No. 3217 of 2003) Citizens for Justice and Peace (CJP) and Communalism Combat helped prepare over 700 affidavits from affected victims who had not got compensation even as per the state and Centre’s scheme. The petition filed in the Gujarat high court in February 2003 also challenged the low rates of compensation laid out in the Gujarat government scheme as hopelessly inadequate. (By a circular dated March 20, 2002 the state of Gujarat fixed an outer limit of Rs. 50,000 as compensation for those whose homes and property were destroyed in the riots).
 

The petition also points out, with detailed documentary evidence, that although the nature and quantum of losses suffered by the minority community in the riots have in most cases been listed and substantiated in the panchnamas recorded by officials, the Gujarat government paid pathetically low sums ranging from Rs. 1,000 to 10,000. In other words, only a fraction of the total damages suffered. Besides, in a large number of cases no compensation whatever has been paid despite the losses being acknowledged and recorded in the panchnamas. The petitioners have challenged the upper limit of Rs. 50,000 and have sought that it be raised to at least Rs. 2,00,000. The petitioners have pointed out that the State was liable to compensate the persons whose homes and property were destroyed, as the government of Gujarat and its officers had totally failed to protect the lives and property of citizens. They were responsible for the total breakdown of public order, for the consequent loss of lives and property, and the deprivation of the peoples’ right to life under Article 21 of the Constitution of India.
 

The Gujarat high court, hearing this petition in April 2003, gave locus standi to representative teams of both petitioners to conduct statewide surveys of victim-survivors and collate these with state claims in the collector’s office. A statewide survey was thus launched by these organisations from 2003 onwards and is expected to be completed by the end of July 2005. There are substantive discrepancies between state claims and the claims documented by us (petitioners). The extensive documentation, it is hoped, would result in fairer compensation to those affected.
 

Meanwhile, as other petitions on issues related to the Gujarat carnage were being heard by the Supreme Court, the amicus curiae, Harish Salve asked for some directions on the issue of compensation. At that point, CJP brought its Gujarat high court petition to the notice of the apex court. On August 17, 2004, the Supreme Court directed that since the matters were already pending before the Gujarat high court, groups like CJP could ask for a modification of the compensation/reparation package at the Gujarat high court level. This was because we had argued that the compensation package did not reflect the needs of victims who were injured and affected.
 

"It is however pointed out to us by the learned amicus curiae and the petitioners (CJP) that while the high court is monitoring the implementation of the scheme framed by the state government for payment of compensation to the victims, the scheme itself is questionable in that many aspects of the scheme are deficient. For example, it is submitted, the scheme does not provide for a realistic compensation in respect of damage to property. It is also submitted that the scheme limits the compensation payable only to death or permanent disablement while excluding cases where the victim may have otherwise suffered grievously, for example by burning, etc. It is also submitted that the victims of sexual offences have not been brought within the purview of the scheme at all…" (Supreme Court order).
 

In May 2004, two widows of British citizens, Shirin and Shamima had, through a court in Himmatnagar, filed for damages worth around Rs. 22 crore against chief minister Narendra Modi and 14 others for failing to protect the lives of citizens, specifically, the killing of two British nationals of Indian origin during the post-Godhra violence in 2002. Judge MM Kayasth served notices on the respondents. In September 2004, in identical written statements before the court, Modi and former state home minister Gordhan Zadaphia said they could not be held responsible for the killing of two UK-based NRIs in the post-Godhra violence in the state. The government said "an attempt is being made to project Modi, the then minister of state for home Zadaphia and six others as anti-Muslim," and urged that the Rs. 22 crore compensation suit for the killing of Saeed Safid Dawood and Shakeel Abdul Haid on February 28, 2002 be dismissed. The matter is still pending.

Three years later, a day prior to the three-year anniversary of the Godhra arson, 21 victim families of the Gulberg massacre, residents of the Gulberg Society in Meghaninagar, Ahmedabad, including Zakiabehn Jaffri, wife of the former Member of Parliament, Ahsan Jaffri, served notice on representatives of the VHP, RSS and the BJP claiming damages of approximately Rs. 6.4 crore in all for the attack on Gulberg Society that claimed more than 68 persons lives (official figures admit to less than this number) on February 28, 2002. Damages have been claimed for loss of life, property, torture, pain and trauma caused to them when mobs unleashed terror due to the bandh call given by the VHP and supported by the RSS and the BJP on February 28, 2002 during which mayhem and carnage resulted. Three months earlier notices had been served on the respondents to which no response had been filed. This legal initiative is being supported by CJP.

Far-reaching verdict

Justice delayed may be justice denied but the Sikh victims of the November 1984 carnage will financially benefit from the verdict of Judge Gita Mittal delivered in May 2005. The extensive judgement makes inroads into the jurisprudence related to compensation for loss of life and injury in communal riots.

Excerpts

"…While considering the question of grant of compensation or ex-gratia payment to the petitioner and families of the victims killed during the riots, all the aforesaid aspects have to be kept in view. It is also noteworthy that the Supreme Court awarded Rs. 1 lakh to Rs.7.5 lakh for illegal curtailment of life as indicated in the aforesaid decisions. Therefore, obviously the compensation or ex-gratia payment as a measure of immediate relief to the victim’s family should be more than Rs. 50,000 and between Rs. 1 lakh and Rs. 7.5 lakh…

"…It has been brought to my notice by Mr. Adarsh Goel, learned counsel for the respondent – Govt. of NCT of Delhi, that widows of riot victims are being paid Rs. 1,000 per month as pension. Learned counsel has produced on record a copy of letter No. F 9 (38)/R-1/DC/88/648 dated May 17, 1996, from the deputy director (Relief-1), office of the deputy commissioner, Delhi, to the desk officer, Ministry of Home Affairs, Govt. of India, North Block, New Delhi, along with a report regarding progress of relief and rehabilitation measures in regard to riot victims of 1984. According to the report, 195 widows are getting pension. Be that as it may, the financial assistance of Rs. 20,000, which was to ameliorate the immediate effect and the long term effect of the killing of an earning hand, was highly inadequate and unfair.

"…Having regard to the aforesaid discussion and also keeping in view the decisions of the Supreme Court, I am of the opinion that the petitioner should have been paid at least a sum of Rs. 2 lakh as compensation. Since the petitioner has already been paid a sum of Rs. 20,000 the respondent is directed to pay a sum of Rs.1,80,000 to the petitioner with interest from October 1984 to the date of payment, which is quantified at Rs. 1.50 lakh. The respondent will make the payment of Rs. 3.30 lakh to the petitioner within one month.

"…This direction to pay enhanced compensation would be applicable to similar cases in order to secure parity and to alleviate the sufferings of the families of the victims who lost their lives during the Delhi riots of 1984. Accordingly, it is directed that the widows and families of the victims who lost their lives in the 1984 Delhi riots be paid a sum of Rs. 3.50 lakh (Rs. 2 lakh with interest quantified at Rs. 1.50 lakh). The payment would be made to them by the respondent after adjusting the amount, if any, paid to them as ex-gratia grant of compensation. It will also be open to the Govt. of NCT of Delhi and the Union of India to consider the grant of compensation over and above the aforesaid amount depending upon the circumstances of the families of the riot victims. I would also direct the State to constitute a committee to disburse the amount of compensation quantified as above to the families of those who were killed in riots after their proper identification. I order accordingly. The exercise should be completed within a period of four months.

"…Keeping in view the entire conspectus of facts and the nature of claim made on behalf of the petitioner and the conduct of the respondents in 1984 and thereafter, I am of the view that the ex-gratia amount of Rs. 2,000 is by no means adequate compensation for the failure to protect the limb and property of the petitioner. The petitioner has submitted that he has been an advocate by profession. On account of extreme trauma suffered by him, he has not been able to recoup his profession and suffered a lot.

"There is no reason to disbelieve such a statement. Different individuals may react differently in the same situation. There can possibly be no scale to measure the depth of the emotional wounds and trauma as a result of undergoing the experiences of the petitioner. He bore the brunt of the attack by the mob and barely escaped death. Scars so left may never heal.

"…Keeping in view the amount awarded by this court in the Bhajan Kaur case for the loss of life, in my view, the petitioner ought to be compensated by a sum of Rs. 75,000 for the injuries suffered by him and deprivation of his property on account of the riots on 2nd November, 2004.

"Since the petitioner has already been paid a sum of Rs. 2,000, the respondent is directed to pay a sum of Rs. 73,000 to the petitioner with interest from October, 1984 to the date of payment. The interest is quantified at Rs.50,000. The respondents will therefore make payment of Rs. 1,23,000 to the petitioner within one month.

"…This court in the judgement dated 5th July, 1996 reported at 1996 III AD Delhi 333 entitled Bhajan Kaur vs. Delhi Administration, directed the respondents to pay the enhanced compensation awarded to all similar cases. In order to secure parity to all persons who suffered injuries, the respondents shall pay the enhanced compensation awarded herein to all such persons to whom the respondents had disbursed the amount of Rs. 2,000 as ex gratia on account of the injuries received in the 1984 riots."

Archived from Communalism Combat, June 2005 Year 11    No.108, Cover Story 2

Gujarat Genocide Victims

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Waiting for justice

“Aaj bhi ham hamare mukkam par nahi ja ke rah sakte (Even today we cannot go back to where we belong).”

– Aiyubmiya, eye-witness to the massacre where 33 persons from Sardarpura village, Mehsana were killed in 2002. The village his family had lived in for decades is no more their home.

“Jab ham bach ke nikle, aath ghante ke baad, aur laash aur laash hamare ghar ke chabootre par giri hui thi; jakar kaanpte kaanpte ham police van me baithe, toh policewale ne kaha, ‘kya itne log bach gaye hai, kya? Hamne socha sab khatm hue!’ (When we escaped with our lives after eight hours of brutal targeting, there was a row of corpses outside our house. Trembling, we got into the waiting police van when a policeman in uniform said, ‘What! So many saved! We thought all would be finished!’).”

– Zakiabehn Jaffri, wife of former parliamentarian Ahsan Jaffri.

“Mere bees saal ke bacche ko police ne nanga kar ke bithaya, peeth mod kar, goliyan mar mar kar police ne khatm kiya… Maine socha tha ki badle mein bandook uthaoon magar phir socha ke nirdosh ko maar kar kya phayda? Aaj bhi hamara case waise hee pada hai, sessions court mein. (My 20-year-old boy was made to strip. The police bent him over and then pumped bullets into him… I thought of picking up the gun in revenge but then I thought what good would killing innocents bring? My case still drags on in the sessions court).”

– Zahid Kadri, a father.

(Survivors’ Speak, meeting organised by Communalism Combat, Citizens for Justice and Peace and SAHMAT, New Delhi, April 16, 2005).

The criminal trial in six major massacres were stayed by the Supreme Court on November 21, 2003 after about 60 victims who are also eye-witnesses filed affidavits in the apex court of India detailing how the investigation into this massacre was being consciously subverted by the Gujarat police and witnesses continually threatened. Though 18 months have passed since the stay and several dates of hearing come and gone, the plea for reinvestigation and transfer is still pending before the apex court.

On May 2, 2002, Citizens for Justice and Peace (CJP) filed a petition through citizens of Gujarat in the Supreme Court of India requesting that the CBI, not the Gujarat police, investigate the major massacres. This was also a key recommendation made by the National Human Rights Commission (NHRC) in its reports, March-July 2002, on the genocide. Three years later, this petition too is pending disposal before the apex court. With due respect, the three major acquittals – including the Best Bakery (in Vadodara), the Kidiad (where 61 persons were burnt alive in two tempos at Limbadiya Chowki in Sabarkantha district), and Pandharwada (where over 45 persons were massacred in two separate incidents in a village in Panchmahal district) massacre cases – may not have resulted if key recommendations made by the NHRC, which included investigation by the CBI into major carnage cases and trials by special courts, had been followed in these cases.

A detailed report, ‘Gujarat –Three Years Later’ is currently being compiled by Communalism Combat. Our preliminary investigations reveal that on a rough estimate about 61,000 persons continue to be internally displaced within the state.

Included among them are key witnesses of the major massacres, who even today cannot go back to their villages or localities simply because they have chosen to fight for justice. Many are both victims of the massacre and key eye-witnesses.

The large majority of the internally displaced were small minority groups scattered across many of Gujarat’s 18,000 villages. They have had to surrender their homes and petty landholdings in return for a life of penury-struck refugees. This is the stark and shameful reality of Gujarat, where even the political Opposition has stopped addressing issues arising out of a State-sponsored pogrom and where the perpetrators continue in seats of power and influence.


The large majority of the internally displaced have had to surrender their homes and petty landholdings in return for a life of penury-struck refugees. This is the stark and shameful reality of Gujarat, where even the political Opposition has stopped addressing issues arising out of a State-sponsored pogrom and where the perpetrators continue in seats of power and influence

Eye-witnesses who are also victims include survivors of the Gulberg massacre (February 28, 2002) where 68 persons were slaughtered including former MP Ahsan Jaffri and 10-15 girls and women subjected to brutal sexual violence; Naroda Gaon and Patiya (February 28, 2002) where over 120 persons were similarly ravaged while a complicit police and elected representatives watched and led mobs respectively; Sardarpura (March 1-3, 2002) where 33 persons were brutally killed in one incident while 14 were burnt alive in the second); and the Ode killings in Anand district (March 1-3, 2002) in which a total of 27 persons were killed. All of them continue to suffer and sacrifice for their decision to struggle for justice. Many eye-witnesses, like a key witness from Naroda Gaon and his family members, have been penalised three or four times with false criminal cases being slapped against them. The attempt is clearly to intimidate all those who stand for the struggle for justice. Recent reports highlighting attempts to target citizens and human rights defenders who support the struggle only underline the state of affairs in Gujarat today.

If there is one thing that the onerous struggle for justice has shown, it is this: For justice to be finally ensured at least in case of the major incidents of carnage let alone the hundreds of crimes that took place in Gujarat in 2002, the struggle for justice needs strong support from State agencies. But in reality, three years after the horrors in which they lost their near and dear ones, key witnesses of the major incidents of violence cannot even step into their villages or localities simply because they have chosen the path of justice.

Further, the conduct of the state of Gujarat through the ongoing Best Bakery re-trial being conducted in Mumbai (see accompanying story) is far removed from that of a prosecutor state committed to ensuring justice. Apart from the questionable role of the Gujarat state in the Best Bakery case, the sheer brazenness of its conduct can be gauged from its decision to reappoint the controversial public prosecutor in the Best Bakery case, Raghuvir Pandya, allegedly a VHP sympathiser, as Vadodara’s district government pleader. Pandya, who was indicted by the Supreme Court for acting “more as a defence counsel than a public prosecutor” in its historic verdict transferring the Best Bakery case to Maharashtra on April 12, 2003 (see Communalism Combat, April 2005), is now back as state counsel and will again plead the government’s case if any of the communal riot cases are reopened!

Clearly undeterred by the spotlight of the apex court, the Gujarat government has appointed another allegedly active BJP member, MD Pandya, as special public prosecutor in a case related to Radhanpur town of Patan district where many BJP heavyweights like Radhanpur BJP MLA Shankar Chaudhary, former president of Radhanpur municipal council Pravin Thakkar, president of Radhanpur municipal borough Prakash Kumar Thakkar and member of the district BJP medical cell Dr. Jyotindra Raval were all implicated as accused in the case.

The attitude of the Gujarat state headed by chief minister Narendra Modi who was re-elected by 51 per cent of the Gujarati electorate in December 2002, nine months after masterminding the pogrom, has been understood and absorbed nationwide. What escapes public attention is the realisation that even three years later there is absolutely no remorse or regret for what had been orchestrated in February/March-May 2002. If Modi is relatively silent today, it is only because of the legal battles in which his state is embroiled despite his best efforts.

At the ground level his brigands carry on unashamed. At Desar village of Vadodara district on April 10, 2005, as hundreds of villagers watched in the presence of BJP MP Jayaben Thakkar, local MLA Upendrasinh Gohil and VHP leaders, two Swaminarayan sadhus unveiled the bust of Vakhatsinh Ramansinh Parmar. The inscription on the marble plaque under the bust read: “This memorial is to honour Ram Sevak Vakhatsinh Ramansinh Parmar who laid down his life in the attacks in retaliation to the killing of 58 karsevaks on the Sabarmati Express in Godhra on February 27, 2002. Parmar was killed in police firing on March 1, 2002, third Friday, Vikram Samvat, 2058”. Parmar was, according to police records, part of a mob that torched Muslim properties and attacked the police when the police was trying to save properties from being torched. He was named as an accused in the case. This is the first time that a riot accused has been publicly felicitated in Gujarat albeit posthumously. The function was organised by the VHP. The local MLA and MP did not find anything wrong in erecting a memorial for a mob leader in a village where Muslims form 30 per cent of the population. “This is a fitting tribute to the youth for his sacrifices for the cause of Hindutva,” Thakkar told The Deccan Herald. Asked about the incident, minister of state for Home Amit Shah said: “One is always innocent till he is convicted.”

An apt illustration of the perversion of values within the political class in Gujarat.

Political campaign

If justice is to prevail, a necessary condition for this must be created through the dismissal of the Modi government under Article 356 of the Constitution, say constitutional experts like Shanti Bhushan.

There is legitimate apprehension among many about the use of Article 356, lest it set a precedent for the Centre to get rid of governments in Opposition-ruled states. But the Gujarat case is an exceptional one in so much as the state government has been seriously implicated by the NHRC and even the Supreme Court, in what are perhaps the most inhuman, horrendous and unconstitutional acts in the history of post-Independence India. In the past few months, courageous statements by serving police officers have echoed the outrage earlier expressed by these apex institutions and hundreds of groups and individuals. Statements by serving policemen that have been made public clearly show that orders were issued by none less than the present chief minister Narendra Modi that minorities who resist or protest be exterminated. Put together, the imposition of Article 356 in Gujarat is warranted not only on grounds of humanity and constitutional propriety, but also for the maintenance of the country’s unity, integrity and secular fabric.

Archived from Communalism Combat, June 2005 Year 11    No.108, Cover Story 1

Caste Crimes

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Over half a century after the Indian Constitution outlawed untouchability, two special Acts to enforce it continue to be subverted. While the police routinely makes a mockery of law, the role of the judiciary leaves much to be desired
 

Every hour two Dalits are assaulted,
Every day three Dalit women are raped,
Every day two Dalits are murdered and two Dalit houses are burnt in India….
(Report of the Ministry of Welfare of the Government of India, 1992-1993)
 

Indian democracy, known worldwide for a Constitution that does integral notions of human rights and dignity proud, has aged, allowing persistent and systemic, often brutal and violent, rights violations. These violations cover a wide trajectory from the violations of the rights of the individual – child to adult – related to the State, family and community, to rights violations experienced by groups that are either socially, politically, economically or religio-culturally marginalised and/or discriminated against. Violations that these groups experience is often both historical and traditional as much as fluid and evolving and often experienced from a set of powerful and well-entrenched non-State actors ably aided by agents of the State. When sections of those marginalised and oppressed organise and articulate themselves into demanding their rights, violence, read ‘atrocities’, against these sections are redoubled, as tools for punitive subjugation.
 

If, at an international level, this recognition that rights violations can be experienced by the individual as also by groups so positioned within and without state boundaries found expression in several covenants, laws and charters after the first Universal Declaration of Human Rights (UDHR), back home our first realisation on this front came with the enactment of the Protection of Civil Rights Act in 1955. Article 17 of the Constitution is that provision of our constitutional mandate through which untouchability was abolished and its practice in any form forbidden. Despite clear and specific constitutional provisions guaranteeing every individual’s right to a life of dignity, equality and non-discrimination, the shameful existence of caste-based discrimination and denials made this specific articulation on untouchability a necessity at the point of time when the Constitution was drafted.
 

Five years later, the Protection of Civil Rights Act, 1955 was enacted in order to enforce this constitutional provision. The provisions of this Act extended to the whole of India. Thirty-four years later even these enactments were found at the ground level to be inadequate. In order to check and deter crimes against Dalits and Adivasis, the Scheduled Castes and Scheduled Tribes, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was brought into force with effect from January 30, 1990 (forty years after we gave ourselves the Constitution).
 

Its main objective was "to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto." The provisions of the Act extend to the whole of India except the state of Jammu and Kashmir. Comprehensive rules were also notified under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 on March 31, 1995, which among other things provide for immediate relief and rehabilitation to the affected persons through the district administration. The provisions of these Acts are meant to be implemented by respective state government/union territory administrations and fifty per cent central aid is provided to ensure the implementation of all provisions.
 

Fifteen years after its enactment, nationwide studies show that while this legislation has provided a critical tool for the social and political mobilisation of Dalits, an insensate State and government machinery has resulted in poor implementation of this Act. Moreover, a concerted backlash from a society and State that staunchly refuses to accept the reality of caste-driven crimes seeks to dilute registration of crimes under this Act as ‘normal’ Indian Penal Code (IPC) crimes. It is time that public stock is taken of the hurdles being put in the way of the implementation of the Atrocities Act.
 

Specific provisions under this legislation were enacted to ensure that certain crimes are taken cognisance of and recorded as caste-based crimes and that for these, stringent punishment and a relief and rehabilitation package for the victim complainant is ensured. Section 4 of the Act specifically relates to penal provisions to be invoked if a police official or any government official fails to perform his/her duty in taking cognisance of the offence or investigating it thoroughly. Despite many studies that have established before various regimes that officers have violated this provision, not only has no action been taken, but in fact policemen have been rewarded with promotions for violating these provisions of the Atrocities Act. (See accompanying story on Gujarat and Andhra Pradesh).
 

It is section 3 under chapter II of the Atrocities Act that gives legislative teeth to the phenomenon of racist caste crimes. It is this section that describes and defines not simply the crimes committed against certain sections of the population (SCs and STs) but positions them for what they are, as caste crimes committed in the context of the existence of caste-based discrimination. It is this section that outlines specifically a crime under section 3(1) of the Atrocities Act as that which "forces a member of a SC or ST to drink or eat any inedible or obnoxious substance" (this in the context of SCs even today being forced to drink urea and human excreta); or under section 3(iii) "forcibly removes clothes from a person/member of the SC or ST… or parades him/her naked…"; or section 3(iv) "wrongfully occupies or cultivates land owned by or allotted to, or notified by a competent authority…"; section 3(xi) "assaults or uses force on any woman belonging to SC or ST with intent to dishonour or outrage (her) modesty".
 

For the first time, this Act specifies the atrocities suffered by SCs and STs, such as the deprivation of their land rights, bonded labour, forcible eviction from their homes, coercion during elections, gender violence against their women and protection against malicious prosecution.
 

Ironically, however, detailed and widespread studies on this law conducted in Gujarat, Andhra Pradesh and other parts of India show distinct and disturbing trends behind the non-implementation of the Atrocities Act. A combination of factors, many based on caste-driven bias, demonstrate that due to the conduct of investigating officers (policemen) and the prosecutors (advocates appointed by state governments to prosecute the offences under this Act) who allow technical lapses in both the investigation and prosecution, offences are often left unprosecuted under the Atrocities Act while the accused is given less serious and less stigmatised punishment under the IPC and Criminal Procedure Code (CrPC). The judiciary thus expends much energy trying to discern whether or not the offence was a caste crime, leading to a further dilution of these acts.

Detailed and widespread studies on this law conducted in Gujarat, Andhra Pradesh and other parts of India show distinct and disturbing trends behind the non-implementation of the Atrocities Act.

Whether in Maharashtra, Gujarat or Andhra Pradesh, judicial pronouncements in lower and higher courts often dismiss cases under the Atrocities Act on technical grounds. What judges overlook in this process is that the Legislature has already clarified that the term "atrocity" denotes an offence under the Indian Penal Code committed against SCs and STs by persons belonging to communities other than SCs or STs. The necessary mens rea (motive) is therefore established with the offence itself and the communities to which both victim and perpetrator respectively belong, not on the court attempting to delve into the very mind of the accused and discern to what extent the atrocity was committed solely because the victim was a SC/ST.
 

The significance of the resultant judicial dilution of the crime – whether through failure of investigation or prosecution – is that the racist element in these crimes gets diluted. A failure to closely analyse this trend can actually make the record books show that, in fact, caste crimes (atrocities under this Act) are mere propaganda, not factual reality. Those offences that are prosecuted and dealt with judicially look, on our records, like simple criminal acts not actions resulting from deep-rooted and widespread caste and social sanction.
 

Apart from a centuries’ old tradition of caste crimes, over the past three decades or so, specifically since the ’80s, brutal pogroms against groups belonging to certain religious communities within India have become a tragic recurrence, enjoining caste atrocities and crimes as organised mass crimes in the life of the Indian nation.
 

These bouts of concentrated violence have had serious genocidal traits. There has been systemic and vicious, even high-level, preparation and pre-planning behind these genocidal pogroms (involving those in power and even the State), active verbal and written demonisation through hate propaganda, targeting of women belonging to these communities, large scale and brutal extermination along with economic targeting and religio-cultural desecration. The disturbing emergence of this phenomena has thrown open a widespread debate on the need for another law that addresses genocidal mass crimes (see Communalism Combat, Draft Bill, September 2004).

While this debate and cry for such a legislative enactment gains momentum, as it should, a close look at our track record on implementation of other such legislation deserves attention. The faulty registration of FIRs, poor investigation of the crime, and the pathetic conduct of public prosecutors, apply more acutely to cases under the Atrocities Act and are therefore also likely to affect those crimes committed against religious minorities. They are also the factors responsible for the failure of the criminal justice system as a whole. Specifically, while a special legislation that pinpoints accountability and punishment on officials of the Indian State for allowing genocidal pogroms – also tracing this accountability to the top man in the chain of command when mass crimes result – is the need of the hour, this special legislation needs to be backed by urgent structural and administrative reform in the Indian police force to give teeth and meaning to the new law.


Illustration: Amili Setalvad
 

Registration of FIRs
The deliverance of justice begins with the registration of a first information report, an FIR. The time factor is vital in lodging a meticulously documented FIR and any inordinate delay may prove detrimental both for effective investigation and prosecution. Thus the endeavour should be to ensure that the FIR is registered at the police station so that the investigation begins at the earliest. Rule 1 (2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 also provides that the superintendent of police shall ensure that the FIR is registered in the book of the concerned police station and effective measures are taken to apprehend the accused. In case registration of the FIR is denied by the police officer on duty, such an officer, if not being a member of a Scheduled Caste or a Scheduled Tribe, can be prosecuted under Section 4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, for wilful neglect of duties required to be performed by that officer under the Act. This rarely happens.
 

Pendency of cases
According to the Union Ministry of Social Justice and Empowerment, out of 138,484 cases (including brought forward cases) in the courts during the year 2003, the cases pending in the courts at the end of the year numbered 117,678, which implies that 84.97% cases were pending in the courts. Once again, the failure of justice to SC and STs is linked to the widespread pendency of cases in general.
 

Though the state governments of Andhra Pradesh, Bihar, Chhattisgarh, Gujarat, Karnataka, Madhya Pradesh, Rajasthan, Tamil Nadu and Uttar Pradesh have set up exclusive special courts with the intention of conducting trial of cases as required under the Act, the data available with the central government for the year 2002 in respect of the exclusive courts in the states of Bihar, Chhattisgarh, Gujarat, Karnataka, Madhya Pradesh, Rajasthan and Tamil Nadu indicates that the pendency of cases in these courts varies between 56.55% (in Rajasthan) and 88.76% (in Bihar). Likewise, the conviction rates vary from 01.86% (in Gujarat) to 29.20% (in Madhya Pradesh). Since the pendency of cases in the exclusive courts is very high, it is difficult to conclude that the exclusive special courts are proving to be fast track courts serving the ends of justice.
 

Low rate of convictions
According to Union Government figures, though the number of cases ending in conviction by the courts under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 marginally increased from 1,241 cases (10.49%) in the year 2000 (when a total of 11,237 cases were disposed of by the courts) to 2,694 cases (11.04%) in the year 2003 (when a total of 19,858 cases were disposed of by the courts); yet the conviction rate is far less than that in case of IPC cases i.e. 40.80% (Source: National Crime Records Bureau, Ministry of Home Affairs, ‘Crime In India’ Report for the year 2001. The Central Vigilance Commission states that conviction rates for criminal cases are just six per cent – 2001).
 

Role of public prosecutors
It is important that the public prosecutors ensure both timely and effective handling of the prosecution case. For this it is necessary to strengthen the institution of special public prosecutors with appropriate remuneration/fees paid to them, so that they are motivated to take up cases effectively, which has a bearing on the end result of the case.
 

In six recent cases from the state of Maharashtra relating to gender violence against women victims belonging to the SCs, cases were summarily disposed of at the lower level due to the questionable conduct of the special public prosecutors (A special survey on the Atrocities Act in Maharashtra will feature in a forthcoming issue of CC).
 

The special public prosecutors appointed under this Act are required to play a very important role to ensure successful results in the case. But as in other cases related to caste and communal crimes, the abdication of the role of the special public prosecutor further disables the implementation of this Act. More than ever the role of special public prosecutors and their conduct require transparent audit before the people. It is the experience of groups attempting to get provisions of this Act implemented that the long pendency of cases and failure of the PPs to interact with the victim and investigate the atrocity/offence dilutes the offence and stymies the prosecution case.
 

Public prosecutors do not even contact the complainant till he enters the witness box. As a result, the poor illiterate complainant experiences isolation from a system meant to guarantee him/her justice.
 

The enforcement of the Atrocities Act is not mandatory – It is voluntary. Thus, non-implementation of the provisions of this Act does not amount to an offence. One can well imagine the consequences when the public prosecutor, instead of making submissions for strict compliance of the provisions of the Act and convicting the accused for an offence under the Act, behaves totally contrary to the provisions of the Act.
 

Role of senior policemen
The Atrocity Act has many provisions that hold the police and district administration responsible for creating a climate under which the atrocities committed under the provisions of this Act can be effectively prosecuted. Rule 8 of the Atrocity Act, Rules – 1995 has provided for a police protection unit under the control of special IG, police. The duty of the unit is to investigate the negligence of state government employees in the implementation of the Act. To date this unit has not taken any suo motu notice of any such non-implementation in most states in the country.
 

Senior officers at the level of district superintendents of police in many states have often been found responsible for criminal negligence under the Act and been indicted by courts for such criminal negligence. The accompanying study on Gujarat and the judgements delivered under the Act in that state shows that it is the district SPs who have been squarely responsible – the responsibility for the effective enforcement of the Atrocities Act at the district level lies with the district superintendents of police of the districts concerned. As per the mandatory provisions contained in Rule 7 (1) and (2) of the Atrocities Rules of 1995, district superintendents of police are required to appoint subordinate officers not below the rank of DySp as investigating officers to investigate offences under the Act.
 

Rule 7 of the Atrocity Rules under the Act framed in 1995 was specifically enacted to ensure responsibility in the appointment of investigating officers under the Atrocities Act. The reasoning behind asking a senior level officer to not merely investigate the alleged offence under the Act but also ensure that a special government notification is made endorsing his appointment has to do with specific abilities of officers chosen to investigate such crimes based on past records. Rule 7 states that such an officer is appointed "after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it on the right lines within the shortest possible time."
 

Moreover, they are also required to see that the investigating officers so appointed undertake investigation on a priority basis and complete the same and submit their report to the DySp within 30 days. Further obligation on the part of DySps is that they should certify such reports and forward the same immediately to the DGP.
 

Despite such clear and mandatory provisions, the DySps continue to entrust investigation to police officers of the level of head constable, police sub inspector or police inspector and have often certified defective investigation reports prepared by the unauthorised investigating officers and produced such reports in the courts. Such defective reports are even forwarded to the DGP by the district SPs!
 

Responsibility of the district administration
The district magistrate/district collector and the district superintendent of police are enjoined under Rule 12 (1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, to visit the place of occurrence of atrocity to assess the loss of life and damage to property and draw a list of victims, their family members and dependents entitled for relief. Government and non-governmental studies reveal that the administration does not fulfill this legally required function.
 

Besides, Rule 12 (2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 provides that the district magistrate or the sub divisional magistrate or any other executive magistrate shall make arrangements to provide immediate relief in cash or in kind or both, to the victims of atrocity, their family members and dependents according to the scale as provided in the Rules. Despite funds for such relief and rehabilitation claimed to be disbursed by the central government, figures show that payments are not made out swiftly, violating the provisions of this Act.
 

Monitoring provisions
The law provides for a quarterly review of the implementation of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the nodal officer with district magistrates and superintendents of police in accordance with Rule 9 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995.
 

In accordance with Rule 9 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, nodal officers for coordinating the functioning of district magistrates and superintendents of police or other authorised officers have been nominated in the states of Andhra Pradesh, Assam, Bihar, Chhattisgarh, Goa, Gujarat, Haryana, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Nagaland, Orissa, Punjab, Rajasthan, Tamil Nadu, Tripura, Uttar Pradesh, Uttaranchal, West Bengal, Chandigarh, Daman & Diu, Dadra & Nagar Haveli, Delhi and Pondicherry. Yet widespread atrocities continue and the non-implementation of the Act is the norm rather than the exception. This is largely due to utter lack of transparency and public attention given to their functioning.
 

Again, according to details available with the central government, the State Level Vigilance and Monitoring Committees under the chairpersonship of the chief minister and district level Vigilance and Monitoring Committees in accordance with Rule 16 and Rule 17 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 have been set up in the states of Andhra Pradesh, Assam, Bihar, Chhattisgarh, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Nagaland, Orissa, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh, Uttaranchal, Dadra & Nagar Haveli, Andaman & Nicobar Islands, Daman & Diu.
 

Annual reports under the Protection of Civil Rights Act, 1955 and the Prevention of Atrocities (Scheduled Castes and Scheduled Tribes) Act, 1989 are meant to be tabled in both houses of Parliament. The last annual report under each of these Acts tabled was related to the year 2002. The fact that this is three-year-old data and also that Parliament spares scant time and attention on social justice and resultant atrocities, has rendered this exercise, too, limited if not redundant.
 

The Indian State, despite its constitutional mandate and obligations, aided by a limping criminal justice system resistant to democratic transparency and reform, has failed not simply to implement the rule of law in general, but has, with relation to our marginalised and weaker sections, failed in these obligations completely.
 

Women, Dalits, Adivasis and religious minorities have reason enough to specifically charge sheet the Indian State.
 

An honest stocktaking of this failure in our sixth decade as a republic may provide some answers. Can social justice or social transformation be ensured without a staunch adherence to the rule of law?

Archived from Communalism Combat, March  2005 Year 11  No.106, Cover Story 1

Oh Gujarat!

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Illustration: Amili Setalvad

On the caste front, too?

A detailed and systematic study undertaken by the Council for Social Justice (CSJ), Ahmedabad, reveals a shocking pattern behind the main reasons for the collapse of the cases filed under the Atrocities Act within Gujarat: utterly negligent police investigation at both the higher and lower levels coupled with a distinctly hostile role played by the public prosecutors.
 

Valjibhai Patel, secretary, CSJ (who has meticulously documented 400 judgements delivered under this act since April 1, 1995 in the Special Atrocity Courts set up in 16 districts of the state), avers that while 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.
 

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.
 

The judgements that have been studied are from special courts in the districts of Banaskantha, Vadodara, Surat, Mehsana, Patan, Bharuch, Surendranagar, Ahmedabad, Sabarkantha, Rajkot, Jamnagar, Amreli, Anand, Veraval, Navsari, Godhra, Valsad and Junagadh. 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.
 

Serious negligence on the part of the police
Rule 7(1) and (2) of the Atrocity Rules of 1995 framed under the Act clearly provides that the investigation of an offence under the Act cannot be carried out by an officer below the rank of DySp, who is further bound to submit his report directly to the state director general of police. Moreover, both the state home secretary and the state social welfare secretary with the director of prosecution are meant, every quarter, to review the investigations undertaken under the Act. Despite this clear provision under the law, in 95 per cent of the cases the accused are acquitted merely on the ground that the investigation was carried out by an officer below the rank (DySp) specified under the Act.
 

Courts have taken very serious note of this fact and have made critical observations for such criminal negligence in several judgements. For instance, in Patan district Special Atrocity Case No. 391/02, paragraph 17, page 10 of the judgement the court states, "If the investigation is not carried out by the competent officer authorised by Rule-7 of the Rules under the Atrocities Act, the case of the complainant can not be proved…. In such circumstances, the investigation of the offence against the accused stands vitiated with the benefit in the favour of accused. In these circumstances the charges under the Atrocities Act framed against the accused are not tenable."
 

Similarly, in Jamnagar district, Spl. Atrocity Case No. 45/2001, the judgement at page number 16 says, "The investigating officer, DySp Jamnagar Rural was in charge when the incident took place. It appears that in fact his designation was of CPI and merely because he was in charge, the investigation cannot be said to be legal. Otherwise, also, the appointment of the investigating officer must be made by the direct orders of the government….In these circumstances the investigation stands to be illegal. As long as the state government does not appoint any authority to carry out the investigation of the offence and if any other officer investigates the offence, such an investigation cannot be said to be legal.." The order states therefore: "The accused Mahobbatsinh alias Hakuba Gagubha Jadeja is hereby convicted for the offence punishable by section 323 of the Indian Penal code (punishment for the crime of voluntarily causing hurt) and section 135(1) of the BP Act. The said accused is hereby acquitted from the charges of offence punishable by section 3(1) (10) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act (the atrocity of "intentionally insults or intimidates with intent to humiliate a member of the SC or ST in any place within public view") and section 324, 504, 506(2) of the Indian Penal Code." The final order states, "Hence the accused was punished with 6 months simple imprisonment and fineand a further imprisonment for 15 days" but escapes the punishment under the Atrocities Act that could extend from six months to 5 years with fine and moreover be classified as a caste crime and not a simple crime.

There are several judgements related to serious offences under this Act, like rape, where the accused, though liable to be convicted, has been acquitted merely because the caste certificate was not placed on record before the court by the investigating officer i.e. the police.

Acquittal due to non-inclusion of caste certificate by the police
A pre-condition for the cognisance of an offence under the Atrocities Act is that the complainant must be a member of a Scheduled Caste or Scheduled Tribe and that the accused must be a member of an upper caste. While investigating the offence, a caste certificate issued to the complainant by a competent authority must be annexed with the complaint and produced by the police before court as supportive evidence. There are several judgements related to serious offences under this Act, like rape, where the accused, though liable to be convicted, has been acquitted merely because the caste certificate was not placed on record before the court by the investigating officer i.e. the police. In many such cases courts have passed severe strictures against the police for their deliberate and wilful negligence in not including a caste certificate thereby rendering the investigation of serious offences under this law handicapped and untenable.
 

Some observations made by the courts include a judgement of Amreli district, case of rape, Spl. Atrocity Case No. 46/03 , page 23, para 24: "The accused has been charged for the offence under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. To establish the offence, the primary responsibility to prove that the complainant-victim is the member of Scheduled Castes community rests with the prosecution. Though the charge sheet indicates that the victim is a member of Scheduled Castes and Scheduled Tribes, it is important to prove this fact. In the present case, the victim is a lady. The prosecution has examined her father, her mother and the investigating officer. However, at no stage the prosecution, by way of cogent evidence that the victim lady was a member of Scheduled Castes and/or Scheduled Tribes community, proves it… Under the provisions of section 3 and 3(1) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, it is incumbent on the part of prosecution to prove that the accused against whom the offence is alleged is not a member of Scheduled Castes or Scheduled Tribes. The prosecution produces no cogent and reliable evidence in this regard and therefore, in such circumstances, there is no other alternative except to acquit the accused of the charges under section 3(1) (11) (12) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (these are offences related to assault, use of force on a Dalit or Adivasi woman with intent to dishonour or outrage her modesty, being in a social/economic/political position to so exploit an SC or ST woman)…The accused Atul Devjibhai Chauhan is hereby held guilty and convicted for the offence punishable under sections 363 (punishment for kidnapping), 366 (kidnapping and forcing woman into marriage) 376 (punishment for rape) of the Indian Penal Code." Thus, the accused in the above case was convicted under the IPC but acquitted under the Atrocities Act due to police negligence.
 

Severe strictures against the police
The police have also been hauled up by the courts fo tampering with evidence in many cases under the Act. In these cases, courts have directed the government to take action against erring police officers for tampering with evidence and making false depositions on oath so as to save the upper caste accused. Apart from this, the courts have also directed the government to produce action taken reports against errant policemen within two months. To date, the government has not produced any such action taken report before the court. Instead of punishing the guilty officers, the government has honoured such officers with promotions!
 

Examples of such disregard of the Atrocities Act by the government of Gujarat include the order delivered in Mehsana district Spl. Atrocity Case No. 16/98, judgement dated January 1, 1999, para 10, wherein the judge states: "The behaviour of Shri Rathod and the method of investigation have been discussed. A copy of this judgement to be sent to the District Superintendent of Police, Mehsana district, with written direction that Shri Maluji Jituji Rathod, Police Sub Inspector, has not undertaken investigation seriously. Necessary enquiry to be made in this regard and its outcome to be reported to this court within two months." With this, the court forwarded a copy of the said judgement to the DSP, Mehsana, on January 8, 1999. By refusing to file an action taken report the Gujarat government has committed contempt of court.
 

In another judgement from the same district, Spl. Atrocity Case No. 924/2000, an order delivered in a bail application dated November 13, 2003, the court observed, "Now if we look at the complaint itself then accused abused him…by calling him "Dheda". In spite of this, the IO has not considered the provision of the Prevention of Atrocity on scheduled Castes/scheduled Tribes Act. This is a serious thing. It is an attempt to divert the investigation. A copy of this order be forwarded to DySp (SC/ST Cell) Mehsana for necessary action in the matter."
 

Similarly, the lower courts within Gujarat have passed serious remarks amounting to criticism against the police for criminal negligence in matters relating to the Atrocities Act. In Rajkot district, Spl. Atrocities Case No. 197/97 dated November 22, 1999, at para 89, page 38, the court states that "The Investigating Officer had gone to the village Umrali and had made enquiry with the witnesses and had made notes in this regard. The said notes were torn and destroyed (by him) and thus deprived the accused and this court from appreciating the important piece of evidence. This is very serious…. A very important piece of evidence has been torn, meaning thereby, it has been destroyed. This is a very serious act and speaks volumes for itself… The complainant Shri Girishbhai of village Bandra has stated the facts in detail in his complaint lodged in Taluka police station. However, the responsible police officer has not made any note regarding his complaint. No entry has been made. No explanation has been tendered in this regard….The important aspect is that all the three injured persons were admitted in the morning at 8.45 a.m. where they have been treated. The case of the prosecution is that the complaint of the complainant was received at 9.15 in the morning and thereafter he was sent to hospital. This fact speaks volumes of (police) negligence …in investigation."
 

In all the three abovementioned cases, theCouncil for Social Justice made written representations to the government demanding action taken reports and legal action against errant policemen under section 4 of the Atrocities Act. To date, in none of the cases has action been taken so far.

Another judgement documented in this extensive study relates to court strictures against the police for making a false statement to help the accused. A judgement delivered in Patan district, Spl. Atrocity Case No. 71/02, para 16, page 10 states, "It appears from the deposition made by the prosecution witness No. 9 in his cross-examination that the facts stated are either inadvertently erroneous or intentionally false statements have been made in order to help the accused. In the judgement rendered in Sessions Case No. 27/03, this court has noted that the police officers of this district are deliberately making false statements in cross-examination. This observation is endorsed by the aforesaid facts."

There are several judgements studied wherein the courts have passed severe strictures against the police and directed the government to take action against erring police officers for tampering with evidence, making false depositions on oath so as to save the upper caste accused and for showing gross negligence in carrying out investigations

Despite a demand made by the CSJ, supported by these judgements, that action be taken under section 4 of the Atrocities Act against these errant officials – including the DSP and other responsible police officers – no action has been taken even after several months.
 

Under rule 7 of the rules enacted under the Atrocities Act, not only is an officer of the rank of DySp required to investigate, which often does not happen (junior beat or police station officials are deputed, vitiating the rationale behind this provision), but the investigation has to be authorised by special orders/notification of the government. The rationale behind this rule is to ensure that persons of integrity, sensitivity and training handle offences under this Act.
 

This rule has been flouted in investigation after investigation, inviting severe strictures by the courts. In Jamnagar district, Spl. Atrocities Case No. 61/01, para 4 at page 26 of the order, the court details how neither the investigation by DySp Pavar or PSI Gadhvi were authorised by an order of the government to investigate the offence, concluding that, since … "No such order has been produced on record of the case. Probably these officers are not even aware that they are not authorised to carry out the investigation…Therefore, the entire investigation of the offence itself is illegal. Based on such illegal investigation, no accused can be linked with the offence or held guilty of offence."
 

Similarly, in Ahmedabad city, Spl. Atrocity Case No. 51/2000, paras 13 and 1 of the judgement at pages 12 and 15 respectively, the court has similarly held that not only has the DySp concerned not carried out the investigation but moreover that the investigation was not specifically notified to him by government order, thus ironically "the accused Ajmalbhai Velabhai Rabari is hereby acquitted and directed to be released….However the accused Ajmalbhai Velabhai Rabari is hereby held guilty under section 235(2) of Criminal Procedure Code for the offence punishable (under) sections 341, 452 and 504(2) of the Indian Penal Code." In the final order the accused was punished with "rigorous imprisonment for a period of 12 months for the offence under section 452 of the Indian Penal Code and further rigorous imprisonment for a period of six months for the offence under section 506(2) of the Indian Penal Code and further, payment of fine of Rs. 500 for the offence under section 341 of the Indian Penal Code. Upon failure to pay the fine, simple imprisonment for a period of 15 days is ordered."
 

Thereby, ironically, while this judgement holds the accused guilty of crimes under sections 341, IPC – punishment for wrongful restraint; section 452, IPC – house trespass after preparation for hurt, assault or wrongful restraint; section 504(2), IPC – intentional insult with intent to provoke breach of peace, but significantly acquits him of offences under section 3(1)(5) of the Atrocities Act which offences, if proved against him, would make him guilty of not merely preparing for and committing crimes of hurt, assault, wrongful restraint and intentional insult but doing so against a member of the SC or ST, sections of the Indian population who have been dealt systemic denials for centuries.
 

Those accused of serious offences like murder and rape, which may attract convictions under criminal law, are being acquitted by courts under the Atrocities Act on flimsy and technical grounds such as the fact that the investigation was carried out in violation of statutory provisions, i.e. was conducted by an officer below the rank of DySp or that the prosecution has not produced the caste certificates of victims. Shockingly, though the offence may otherwise be proved, it is treated as not established because of the absence of such technical provisions being met by the police.
 

In some judgements delivered, the courts have made critical observations on the negligence of the police. In Kheda district, Spl. Atrocity Case No. 39/01 dated May 7, 2004, para 32 at page 23, the court has observed, that while "the accused Khant Kanabhai, resident of Sompura Jilodi, Taluka Virpur is held for the offence under section 323 (punishment for voluntarily causing hurt) of the Indian Penal Code and under section 235(2) of the Code of Criminal Procedure, the accused is directed to undergo rigorous imprisonment for a period of one year and fine of Rs.1000 and upon failure to pay the fine further imprisonment for a period of three months and for the offence under section 504 of the Indian Penal Code, rigorous imprisonment for a period of one year and fine of Rs.1000 and upon failure to pay the fine further imprisonment for a period of three months… the accused is acquitted for the charges under section 3(1)(10) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act."
 

From the above judgement it is clearly established that though the offence under the Atrocities Act is supported by evidence, i.e. though the offence is proved, the court has no alternative but to acquit the accused merely because of negligence on the part of the police authority. Thus the provision of the Act is violated. This fact has been clearly noted by the court. With this judgement also the Council for Social Justice made a representation to the government demanding action against responsible officers under section 4 of the Act but to date the government has taken no action.
 

Serious negligence by public prosecutors

The Atrocities Act provides for appointment of special public prosecutors to try cases under the Atrocities Act but the often hostile role played by those appointed by state governments to prosecute cases under this law destroys the case. It has been found that not only do cases often not reach the stage of trial for several years but when the victim/complainant enters the witness box to depose, he does not know who the prosecutor 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.
 

Decisions and guidelines issued by the higher judiciary, including the Supreme Court and various high courts, in cases of atrocity under the Atrocities Act, establish that the prosecution needs to prove that the complainant belongs to a Scheduled Caste or Scheduled Tribe and that the accused does not belong to a Scheduled Caste or Scheduled Tribe and that the incident involved is a direct result of caste discrimination resulting in caste-based crimes. All this needs to be established in the special courts by the special public prosecutors through a thorough examination of the accused. The PP is required to produce a caste certificate for the complainant in court, accompanied by the recognised list of Scheduled Castes or Scheduled Tribes, and point out to the court that the accused does not figure in the list of Scheduled Castes or Scheduled Tribes and thus prove that the accused belongs to the upper caste.
 

Normally, victim complainants hailing from the SCs or STs who approach the Court are from poor and illiterate sections of the rural population, unaided by the PP or the State. Their caste is established by the PP, as is the caste crime itself. 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. In a judgement delivered in Patan district, Spl. Atrocities Case No. 375/02, para 10 at page 5, the judges state, "It is held by the Supreme Court in the judgement reported in 2000-SCC-722 that in the cases of offence under Atrocities Act, merely because the victim belonged to the Scheduled Caste and the accused belonged to the class other than the Scheduled Caste, the provisions of the Act can not be made applicable. It must however be proved by the complainant that the victim belonged to the Scheduled Caste and that the incident took place because of the reason that the victim belonged to the Scheduled Caste. If anything is done by way of discrimination or unsociability against the people belonging to the Scheduled Caste, law prohibits it. In view of this provision, in the instant case, it does not appear that the alleged incident took place merely because the complainant belonged to the Scheduled Caste."
 

Incidentally, 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.

Archived from Communalism Combat, March  2005 Year 11  No.106, Cover Story 2

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