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

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

In Andhra, the story gets no better

Descent and work-based discrimination continues to circumscribe Dalits’ access to and ownership of livelihood resources, occupational mobility and opportunities for socio-economic development, relegating them to among the poorest of the poor across the country. And while Dalits are becoming increasingly aware of and asserting their fundamental rights – to justice, non-discrimination and basic human dignity – a corresponding backlash is taking place in terms of the increasing number of caste-based atrocities perpetrated by the dominant castes.
 

Judgements Pronounced By Six Special Courts In Andhra Pradesh During 2002-02

Source: Study on Special courts in AP (Forthcoming), Sakshi

Most common alleged causes for atrocities:

The emerging trend is that increasingly atrocities against Dalits are related to land, water, wages and other livelihood issues. Most of the atrocities are committed when Dalits attempted to assert their right to,

• Legal remedies
• Access to resources (land, water, livelihood)
• Choice of occupation
• Participation in the cultural life of the community
• Vote
• Self-dignity
• Protest against victimisation of Dalits to satisfy superstitions beliefs of dominant castes (witchcraft, human sacrifice).

A detailed study undertaken by SAKSHI, Andhra Pradesh, reveals several grave issues related to the manner in which the judiciary itself looks at the whole issue of caste crimes and finally pronounces judgements under the Act.

If a Dalit victim is lucky enough to escape or overcome these hurdles, to be one of the few cases that make it to the courts —

 Offence-wise Judgements of High Courts on SC/ST (POA) Act 

i. Cases pending in lower courts

• Andhra Pradesh boasts of sessions courts in all districts entrusted with the speedy trial of atrocity cases falling under the SC/ST (POA) Act. And yet, the volume of atrocity cases does not match the judgement outcomes flowing from these courts of justice.
• By 2003 there were 365 cases pending before special courts of four AP districts. Given the increasing trend in the violations one can imagine the volume of cases pending before lower courts.

ii. Convictions in lower courts

• As per the study of Sakshi 287 cases were acquitted out of 297 cases in which judgements were pronounced in lower courts during 2002-04. There were convictions in only 4.7 per cent of the cases.
• The conviction rate was relatively much higher in the cases in which the trial was completed and judgement was pronounced in less than a year (8.7 %) and it declined with increases in the duration of the trial.

The reasons for acquittals are follows:

• Not abused by caste name at the time of offence
• Evidence not corroborated
• Victim did not identify the accused
• Offences committed not on the ground of SC/ST
• Investigation not done by competent authority
• Report not given by the victim
• Caste was not mentioned complaint
• Medical evidence not produced
• Victim died during the trial
• Victim did not belong to SC/ST.

iii. Convictions in high courts

The same trend appears across the country when viewing high court judgements on the SC/ST (POA) Act across the country:

• Of the 78 high court judgements Sakshi analysed, the major offences being that of rape, attack or caste abuse, 65.4 percent of cases saw judgements that went against Dalits. Particularly where the prescribed maximum punishment was for serious offences incurring over 10 years imprisonment, 75 percent of the cases were decided against Dalits.
• It is when one analyses the grounds for the judgements that judicial misinterpretation of the spirit of the SC/ST (POA) Act emerges. While no court has as yet upheld the fallacious argument that the Act is ultra vires or contravenes fundamental rights under the Constitution, five major grounds are utilised to justify judgements against Dalits :
• Not granting bail violates Article 21 of the Constitution: Judicial opinion as to the validity of sec. 18 SC/ST (POA) Act seems to be split, with seven cases in favour and nine against granting of bail. What is the key here is the legislative purpose for inclusion of such a provision, in recognition of the nature of caste-based atrocities which will often provoke retribution against Dalits where atrocity cases are filed. Hence, in no circumstances where a prima facie case exists should a person charged with offences under the Act be allowed out on bail. By ignoring this factor and granting bail in favour of the dominant caste accused, the courts are wittingly or unwittingly exposing Dalit victims to further threats, harassment or violence.
• Investigation not done by competent authority: Nine out of the 11 cases where appeals were filed citing technical fault in that the investigation of atrocities cases were not done by competent authorities, namely the DSP or higher ranking officer as per Rule 7 SC/ST (POA) Rules, ended in favour of the dominant caste accused being acquitted of the charges. Hence, prima facie cases of atrocities are being dismissed unpunished on the grounds of mere technicalities, which defeat the very purpose of the Act. While the prescription of DSP or higher ranking officer was stipulated to ensure proper and supposedly more fair investigation of atrocity cases, where by mistake or design a lower ranking officer investigates an atrocity case, it defeats the purpose of such protective legislation to allow the accused to escape punishment on a mere technicality. Moreover, it amounts to punishing the Dalit victim for a procedural error which is in fact the error of the government machinery.
• Special court has no jurisdiction to take cognisance of SC/ST cases: Again, it defeats the very purpose of the Act to grant the Special Courts no powers to directly take cognisance of SC/ST cases. The whole purpose of this provision is to provide for speedy trials of atrocity cases to bring justice to Dalit and Adivasi victims. However, by stating that all cases have to go through a committal process from a magistrate to the special courts, not only is the overburdened regular court system being stretched with this unnecessary responsibility, but the efficacy and pace of special courts in disposing of atrocity cases is slowed down. The fact that 12 out of 17 cases where this point was mooted resulted in the cases being referred to the magistrates for committal is evidence enough of unnecessary delays being imposed in the trial of atrocity cases.
• Crime not committed on the ground of being SC/ST: One of the greatest fallacies in interpreting the SC/ST (POA) Act lies in the over-emphasis on establishing that the atrocity took place on the ground that the victim was a SC/ST. 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 is therefore established with the offence itself and the communities to which both victim and perpetrator respectively belong. It is not for the 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.
• Appreciation of the SC/ST (POA) Act by lower courts: The most common ground for high court judgements was regarding appreciation of the Act by lower courts, with 27 cases decided on this ground, 20 or 74.1 percent of which resulted in judgements in favour of the dominant caste accused.

 Analysis of Grounds for High Court Judgements on SC/ST (POA) Act

Modification of Judgement means either an order for reinvestigation, a compromise or a reduction of sentence.
Source: Dalit Human Right Monitor 2000-03, Sakshi

Archived from Communalism Combat, March  2005 Year 11  No.106, Cover Story 3