In a statement critiquing the move of the Modi government on the last day of the 2023 monsoon session of Parliament, Kirti Roy of Masum has raised serious issues over the new sections introduced and the enhanced punishments.

Section 150 of the Bharatiya Nyaya Sanhita (BNS), 2023 reveals that the word ‘sedition’ has been removed but the spirit of the sedition law is very much existent in the new section. At any moment of time when the government in power has or is given by law, the ultimate authority to determine whether an act/ observation/opinion/association is “anti-national or against the integrity of the nation” this paves the way for the misuse of this draconian legal provision against any dissent.

Section 150 of the new Bharatiya Nyaya Sanhita Bill details the codes while discussing the acts, which “endanger” the sovereignty, unity, and integrity of India. It states: “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.”  This definition is not in any way different to the original one in Indian Penal Code under section 124A  either in letter and spirit.

The explanation of the law appears incomplete. It also brings into its purview the potential to criminalize protests against any action or inaction of the government authority. By using the words ‘subversive activity’ which are not only vague but can be used to restrict democratic activities denouncing the government’s policies and actions. This is a direct attack on the fundamental constitutional rights of the citizens of India. The Constitution of India guarantees the right to protest under Article 19 (1) (b) and is a basic fundamental freedom incorporated by the makers of our constitution which is being demolished with this new section. The dissenting voice and the human rights defenders are both at risk and at stake.

The new criminal bills also introduce new offences with stricter punishment.

Section 111 of the Bharatiya Nyaya Sanhita incorporates a new crime as the ‘Terrorist act’ under general penal law. For dealing with terrorist activities there are special laws like UAPA (Unlawful Activities Prevention Act, 1967). Then why have the features of the UAPA which are in existence now being brought into the new penal provisions presented by the government?

To define terrorist acts it explicitly refers under section 111 (1) (iv), “ to provoke or influence by intimidation the Government or its organization, in such a manner so as to cause or likely to cause death or injury to any public functionary or any person or an act of detaining any person and threatening to kill or injure such person in order to compel the Government to do or abstain from doing any act, or destabilize or destroy the political, economic, or social structures of the country, or create a public emergency or undermine public safety.” This definition is vague as well echoing the same position which exists in the special UAPA provisions. It can be misused by the government authorities to take vengeance against the opposition, human rights workers and dissent voices who raise their opinion against the government.

Whil most of the civilized countries of the world have moved towards abolishing the death penalty in the 21^st century, newly introduced crimes like mob lynching under the BNS will attract the death penalty! This from a country that will preside over the 18th G-20 summit next month. Mob lynching and all crimes introduced in accordance with the Optional II protocol of the ICCPR will attract the death penalty.

These three bills denounce the basic concept of the Indian Criminal Jurisprudence i.e., “assume innocence until proven guilty”. The Supreme Court in its various judgments clearly denounces handcuffing and roping (Prem Shankar Shukla vs. Delhi Administration 1980 SCC 526 / Citizens for Democracy vs. State of Assam and others-(1995) 3SCC743) but the present Bharatiya Nagarik Suraksha Sanhita allows the savage act of handcuffing for the arrest of persons in many cases including murder, rape and counterfeit currency.

The manner of introduction of these three bills is also improper. The bills were introduced on the last day of the monsoon session leading to inadequate consultation in Parliament regarding these bills. These new elements related to the judicial process should have been placed before the law commission prior to tabling it before the parliament. By this act, the present government made it clear that they wish to supersede and bypass the legal fraternity and due process of consultative democratic governance.

These changes in the criminal justice administration system can be dubbed as pseudo-progressive change. This act of the present government is a sinister design to communalise the judicial process of the country by Sanskritization the nomenclature of the legal provisions, which is undemocratic and colonial in nature. The present social-economic legal situation of this country demands a democratic change in these legal acts, provisions and procedures.

Therefore, the statement on behalf of MASUM, calls upon every academic, individual, member of political parties, NGOs, CBOs and organizations to come forward and discuss the intended changes for a constructive and democratic discourse on the present legal provisions and protest against the government’s constant attempt to suppress the dissenting voice.

The statement has been signed by Kirity Roy, Secretary, Banglar Manabadhikar Suraksha Mancha (MASUM)

The post Draconian not anti-colonial: Bharatiya Nyaya Samhita (BNS) appeared first on SabrangIndia.

 

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

The post Caste Crimes appeared first on SabrangIndia.

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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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

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Over the past two years, major national dailies have frequently reported, with photographs, brazen at  tempts by the Vishwa Hindu Parishad (VHP) and the Bajrang Dal (BD) to form private Hindu armies. Arms training camps have been organised by them  in different parts of the country, where young men and women are trained in the use of guns as well as trishuls, sword and other martial arts. 

Under the Indian Constitution, private militias arming themselves represent a threat to law and order and the peace and tranquility that the State is bound to preserve. 

The Arms Act, 1959 expressly prohibits the possession of arms by private parties without license. The only exception made is for security agencies. The possession of a license before a firearm is owned is a legal requirement. Such licenses are given or granted only if there is reasonable apprehension of aggression. 

The Bombay Police Act is similarly stringent on the question of possession of arms by citizens. The police are empowered to demand production of a license (section 19 of the Arms Act), arrest persons conveying arms etc under suspicious circumstances (section 20), confiscation of arms etc on possession of unlicensed arms (section 20).

In the section on fundamental rights, the Indian Constitution guarantees the freedom of expression, faith, belief and worship (Article 25) and equality before the law (Article 14). Taken together, these articles of the Indian Constitution guarantee the Indian State’s secular and democratic nature.

By their numerous statements and actions, the VHP, Bajrang Dal, RSS and the Shiv Sena are guilty of violating the Indian Constitution, the Arms Act and the Indian Penal Code. Are these criminal antecedents not ground enough to impel the Indian state into putting an immediate stop to these blatantly illegal and provocative camps, seizing the illegally held arms, and if necessary, arresting the chief agent provocateurs — the leaders of the Bajrang Dal, VHP and the Shiv Sena? 

By their statements and actions, the criminal antecedents of the VHP, Bajrang Dal, RSS and the Shiv Sena indict them for being violators of both the Indian Constitution, the Arms Act and the Indian Penal Code. Are these criminal antecedents and their defiance of the Arms Act not ground enough to impel the Indian state to put an immediate stop to these blatantly illegal and provocative camps, seize the arms that they have stored and if necessary, arrest the chief agent provocateurs, the leaders of the SS, BD and VHP? 

So far, only the CPI(M) and the Congress have demanded a curb on these activities. Last year, through an ordinance enacted on January 21, 2000, the Left Front government in Kerala had imposed strict restrictions on the kind of martial training imparted to shakha goers at RSS shakhas all over the country. The ordinance had made compulsory any organisation that wants to give martial arts training, the acquisition of a license. It also empowers police to inspect such training centres. (CC February 2000).  

Archived from Communalism Combat, July 2001 Year 8  No. 70, Campaign 1

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For Indians who truly  value tolerance, every  passing day sounds a  death knell. The ground  is slipping swiftly; we are  sinking fast into the  quicksand of brazen manipulation. Such outlets for articulating grievances that still exist are severely proscribed by the rapidity of events and happenings. Institutions for the affirmation of inalienable basic rights are limited by an apathy that is compounded by a piece–meal response to events. 

Courts, the police, the legislature and the executive are all crippled. Either because of a self–inflicted tunnel vision that refuses to recognise the calculated plan or pattern behind the systematic build up of the climate of hate in which violence appears ‘legitimate’, or because of calculated indifference, driven by bias. 

We are all witness to the wilful flouting of the rule of law, daily. As it has been happening since the mid–eighties before their formal grip on political power, and more so since 1998, after the BJP’s rise to power, the fundamental freedom of faith and the identity of Indians who are not Hindu has been a constant target. 

Constant intimidation through verbal barrage and frequent acts of violence against a section of Indians — Muslims and Christians — have come to be accepted as facts of life. Vicious utterances, that go unrestrained and unchallenged by the guardians of law, have accorded them a sinister legitimacy. The statements by the leaders of the BJP/RSS/VHP/Bajrang Dal/SS, inciting hatred and violence and acts of violence themselves, are being highlighted by the mainline media every other day. 

As the cumulative outcome of the carefully cultivated climate of coercion, other basic freedoms — right to life and liberty, of personal security of and the right of association — of thousands of Indians stand severely curtailed. Churches are attacked; copies of the Bible desecrated and burnt. A Christian priest is forced to worship inside a temple; adivasis are ‘re–converted’ amidst much fanfare but told to worship in separate shrines thereafter.

Physical attacks and intimidation of minorities have re–surfaced with a vengeance. Incidents in the past three months alone — between April and June 2000 — have crossed the three dozen mark. Christian religious persons running educational institutions or health centres have been singled out for murder or other forms of mistreatment. In every instance, mob rule and intimidation has overpowered the rule of law, with the local police reduced to wilful impotency. 

Every attack has been preceded by systematic distribution of hate spewing pamphlets (see box 2). Since 1996, media reports have drawn repeated attention to such hate campaigns. But all the vitriol has suspiciously escaped police action under relevant sections of the Indian Penal Code (IPC). Gujarat, and now Uttar Pradesh, are living examples of life for Indians under ‘Hindu rashtra’.

Senior officials in the police, like the DGP of Gujarat, CP Singh, have stated on record that “organisations like the VHP and Bajrang Dal are clearly behind the violence” (see CC, October 1998). Concrete evidence in specific cases points clearly to the moral and ideological backing that the sangh parivar renders to the assailants. But our watchdogs and institutions fail to make the connection or see the pattern.

Four months ago, the newly appointed RSS Sarsanghchalak, KS Sudarshan, declared that an ‘epic war’ was in progress in India between Hindus and ‘anti–Hindu forces’; in Mumbai, Bal Thackeray’s Saamna is once again spitting venom with a vengeance against ‘anti–national’ Muslims (See page 25). And yet, we resist drawing the links. 

What is responsible for this selective amnesia? How is it possible for us to react to rights’ violations in individual cases but turn a blind eye to the bloody and devious design that underlies them?

One fine day, a Bajrang Dal leader, Dharmendra Sharma, sah-sahayojak for the Braj region, makes front page news declaring that Christians are now “bigger enemies” than Muslims. (The Times of India, June 23, 2000). Clarification, if any were needed, that Muslims remain the Bajrang Dal’s and the VHP’s enemies! “Maar peet to kya, hum sab kuch karne ke liye taiyar hain” (“We are prepared to use violence. There is no limit”), said Sharma, leaving no room for any confusion. 

The remark prompted an expression of outrage from India’s attorney general, Soli Sorabjee. He opined that such elements should be put behind bars. The National Human Rights Commission demanded details of attacks on Christians from the central and state governments. But only weeks earlier, the remark of the all–India Bajrang Dal convenor, Dr. Surendra Jain, calling for “a second Quit India movement” to drive away Christian missionaries had passed unnoticed and unchallenged. (The Afternoon Despatch and Courier, May 27, 2000).

Life in Gujarat for a Muslim or a Christian today is a suffocating reminder that he or she no longer enjoys the precious privilege of being regarded as an equal Indian. Muslims residing in ‘cosmopolitan’ localities in Gujarat are forcibly evicted; Muslim children have to compulsory attend school and even give examinations on Id day. Discrimination and bias has insidiously crept into the marketplace of ideas, avenues of livelihood, educational institutions, the administration, the police, the judiciary. All in all, the quality that we used to proudly describe as Indian values is fast eroding. 

What more will it take to force us to recognise the extent of corrosion? Mumbai’s classrooms, at the university level, reflect this public sanction to brazen bias in their own style. A professor advising students on how to write an essay for the All India Open School examination elaborates: “Write about how the British exploited this country. And how before that the Muslim rulers, thanks to their love of the good life, robbed this great wealthy land of all its wealth. Muslims have always loved the good life and it is this greed that has looted our country that used to be a sone ki chidiya (a golden bird). 

There is a clever and calculated plan behind every campaign launched, sustained and developed by the RSS and its faithful followers. In the eighties, the campaign for a glorious temple in the name of Lord Ram at Ayodhya fired 18,000 villages to participate in the shilanyas in 1990, and over 5,00,000 kar sevaks to be witness and participants in the demolition of a mosque in Ayodhya two years later. Clever double entendre accompanied the campaign for a temple at Lord Ram’s legendary birthplace. The justification in the nation–wide effort was through the demonising of Mughal emperor Babar. Muslims in India today, ‘Babar ki aulad’, were crudely told again and again, that they had trampled on all that is decent Indian, read Hindu.

With the campaign for the construction of a Ram mandir at Ayodhya now in the process of being actively revived, the anti–Muslim underpinnings of the campaign are also re–surfacing in subtle and not–so–subtle forms. The Archaeological Survey of India (ASI), nudged by an encouraging human resources development ministry under none less than Murli Manohar Joshi, is busy excavating 46 Indian historical sites, including UNESCO–protected World Heritage sites like Fatehpur Sikri. Objective? To establish that Hindu or Jain temples exist below Mughal (read Muslim), monuments.

There is a brazenness that underlines the physical assaults and intimidation whereby the assailants present themselves as victims acting in self–defence. Of late, the Bajrang Dal has publicly started arms training for its cadre in order to prepare them for ‘defending’ Hindus and Hinduism from the demons being resurrected — Muslims and Christians. The daily violators of law and those who condone verbal assaults, physical intimidation and murder are the first to point to Pakistan’s ISI as the real culprit! Union home minister, Advani also concurs, seeing a foreign hand behind the attacks on Christians. The result: the nitty–gritty facts behind those responsible for the assaults and violence in each of the cases, where culprits inspired by or belonging to the RSS, the Bajrang Dal and the VHP have been identified, are glossed over and the police just do not act. The guilty not only escape the arm of the law but enjoy government protection every time. 

Prime Minister, Atal Behari Vajpayee and his strongman, Union home minister LK Advani, have once more declared that there is “no communal twist to the recent incidents”. The liberal mukhota of the sangh parivar is useful for the saffron bandwagon at ticklish moments like this. 

Vajpayee’s admirers, who simply refuse to believe him capable of legitimising hatred and selective murder, saw his recent bowing before the Pope at the Vatican as a “master stroke”. That the pontiff raised the issue of increasing attacks on Christians at his meeting with the PM and yet again, three days later, is seen as simply a passing hitch in international relations. 

Graham Staines’ murderer, Dara Singh is today a man lionised by the literature emanating from the saffron camp. He proposes to fight the next election. For the moment, the Hindu Jagran Sammukhya, backed by the RSS, is busy distributing thousands of copies of a 16–page booklet Mu Dara Singh Kahuchi (I am Dara Singh speaking) in Manoharpur, Orissa. The booklet focuses on the activities of the Staines’ family and proclaiming that since “Staines was the killer of our culture, so his killing was necessary”. 

The officially–appointed Wadhwa Commission implicated Dara Singh in the triple murder case but despite the evidence of police officers and counsel before the Commission, it exonerated the like BJP, RSS, VHP and BD. An example, yet again, of a resistance to examine the ideological backup that allows a Dara Singh to flourish and grow in popularity.
Vajpayee has been of consistent use to the hate–driven parivar. Eighteen months ago, on New Year’s Day 1999, after visiting the southern district of The Dangs in Gujarat, that had suffered systematic violence against its minuscule resident Christian community (ruining traditional Christmas celebrations), Vajpayee spoke to the national media. Without a single word on the violence and intimidation suffered by Dang Christians, he called for a national debate on conversions! 

Union home minister, LK Advani, used to be the BJP’s most eloquent leader on every issue pertaining to minority–majority relations in the country in the eighties and nineties — before he took an oath swearing allegiance to the secular and democratic tenets of the Indian Constitution. Today, he has mastered the art of keeping a conspicuous silence. He does surface on appropriate occasions only to issue clean character certificates to the Bajrang Dal and the VHP every time their name gets associated with criminal incidents. 

Following the triple murder by burning of Graham Staines and his young sons, Advani was quick to absolve the VHP and Bajrang Dal of any involvement in the crime. He knew these organisations well, he said, adding that they were incapable of criminal acts! It is a well–programmed symphony in operation, being played out by the different organs of the sangh parivar every day. That the Vajpayee–Advani duo is right on top of the political pyramid, ever ready with alibis, helps a great deal. 

That the BJP and its supporters within and outside the sangh parivar rely heavily on Vajpayee’s liberal mask is more than understandable. What is not, however, is the wilful blindness of the secular components of the NDA, leaders such as the TDP’s technocrat, Chandrababu Naidu, the Trinamool Congress’ firebrand, Mamata Banerjee, and the ever–reasonable socialists, George Fernandes and Jaya Jaitly. 

Equally difficult to appreciate is the failure of individuals within other secular political formations to categorically affirm that the basic rights and freedoms of every Indian, regardless of religion, caste, creed or gender is inalienable. (Remember a state minister from the ‘secular’ Nationalist Congress Party (NCP) in Maharashtra, personally welcoming criminals allegedly associated with the Bajrang Dal on their release from the Nasik jail. They were charged with the vandalising a girl’s hostel in April. The deputy chief minister of Maharashtra, Chhagan Bhujbal, later justified the minister’s behaviour).

Most opinion polls conducted to gauge public opinion indicate that only about a quarter of the Indian population backs the BJP and not all the support is for communal reasons. The rest of India, which naturally includes minorities, Dalits and other Hindus within it, remains opposed to Hindutva’s antics.

The hitch lies, however, in the lack of translation of this opposition into organised protest and outrage. The ignominies of rights abuses and oppression of minorities, women and Dalits notwithstanding, there is an innate reluctance to accept, acknowledge and rise in unison against these horrors. One of the reasons is our refusal to abandon the prevalent myth of Indian civilisation as the most ancient, the most non-violent, and the mSost tolerant in the world.

Only the creative explosion of that myth will help rid us of our false cocoon of comfort and galvanise us into articulation of outrage that is long overdue.

Archived from Communalism Combat, July 2000, Year 7  No. 60, Cover Story

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Indian Parliament is on the  verge of passing a freshly  drafted, preventive detention leg islation, the Criminal Law 
Amendment Bill, 1998 (CLA) that is a brazen measure aimed at stifling democratic dissent and which, moreover exposes a sinister motive of incorporating a preventive detention law permanently within the criminal law statute.

Inherent to all preventive detention laws are severe curtailments of basic rights of the citizen, rights related to grounds for arrest, detention, fair trial and other crucial checks and balances on a law and order machinery that, with arbitrary power under law, could well misuse these against the detainee.

The present Bill was introduced by the ministry of home affairs under Congress rule in May 1995. The draft of the new legislation proposed then to replace TADA after toning down some of the harsher provisions contained within TADA. The government proposed to rush it through with open support of the Bharatiya Janata Party (BJP) but this attempt was stalled. A working paper circulated by the Law Commission in early 2000 with the revised draft, the CLA, 1998 reveals that the proposed law is a replica of TADA, with some additional draconian features brought back in. Following highly critical feedback on the new Bill, the Law Commission,  is currently working on a revision of the working paper that is likely to be ready in April 2000.

The working paper of 1999 reveals a narrow and partisan view of the political situation in the country and our recent political history. The section Security Situation in the Country  contains statistics and other data concerned with acts of violence in Jammu and Kashmir, Punjab and the North-East. The Religious Fundamentalist Militancy section mentions that Muslim militancy increased after the bomb blasts in Mumbai, but there is no mention at all of the events before and on December 6, 1992 and the nationwide holocaust that followed.

In 1985 the following clauses contained within TADA were removed from the new Bill. They now re-appear in the CLA Bill of 1998.

Ø The pernicious clause (section 15) which made confessions before police officers admissible as evidence was deleted

Ø The right of appeal to the High Court (and not only to the Supreme Court was restored

Ø Restrictions on the right to bail were removed following judicial direction in Hitendra Thakur v/s State judgement, SC 255.

Ø Section 5 of TADA that had been incorporated into the new Bill, the section pertaining to the mere possession of arms in a notified area constituting an offence was also removed. This followed the SC judgement in the Sanjay Dutt  v/s State through CBI (1994 5SCC 410). This section is now back.

Ø Section 22 of TADA, 1987, also incorporated in the new Bill, which substituted a test identification parade with photo identification was deleted. This provision in TADA had also been held by the SC to be illegal in Kartar Singh. It is now back.

The new Bill sets dangerous precedents in the already black history of preventive detention in India

Ø TADA had to be specially notified in areas that were deemed to be fit for the operation of such a law, the CLA will automatically operate throughout the length and breadth of the country.

Ø The proposed CLA Bill, 1998 will remain in force for five full years. The Law Commission is of the opinion that India requires a permanent anti-terrorist law in view of the alarming  proportions that terrorism has acquired over the past few years.

Ø Modeled on UK and US Anti-Terrorism legislation, a factor that the government is using as justification, the CLA, 1998 omits critical features of accountability contained in the originator legislations. In those countries, government is bound to present annual details of arrests and convictions on the floor of Parliament to ensure a measure of accountability. No such measure of government accountability is contained here.

Ø In the wake of the bomb blasts in Coimbatore in February 1998 (that incidentally also followed three months after brutal bloodletting against the city’s Muslims in November 1997, the Tamil Nadu government enacted the Prevention of Terrorist Activities Act (POTA) which was only recently repealed due to sustained campaigns in that state. In early 1999, the Maharashtra government brought in the Control of Organised Crime Act, 1999 which also contains the most draconian provisions of TADA.  In such a situation, what will the combined effect of a surfeit of preventive detention be except to unlawfully and unconstitutionally vest more and more arbitrary powers with the police?

Ø Article 4 of the International Covenant on Civil and Political Rights (ICCPR) to which India is a signatory since 1979, permits states to derogate from certain sections when there is a ‘public emergency that threatens the life of the nation,’ and only ‘to the extent strictly required by the exigencies of the situation.’ This qualification makes it difficult to justify the application of CLA indiscriminately to all parts of the country.

India has a abysmal record of blatant human rights violations that include systematic encounter killings by the law and order machinery or security forces (note the senseless killings of four innocent Kashmiri Muslims near the Zontangri peak to ‘avenge’ the massacre of 35 Sikhs allegedly by foreign militants at Chitti Singhpora on March 20 by the Indian army and the police), a pathetic record of deaths and brutal torture in custody and a non-existent adherence to basic criminal law procedures in matters of arrest, detention and questioning. A new law that grants further immunity to the Indian state and the police from checks and balances from arbitrary misuse, is to put it mildly, ominous.

We are also a state with the longest history of preventive detention since our Independence barring the three-year period between 1977-1980. The worst human rights record was during decade-long existence of the Terrorist and Disputed Activities (Prevention) Act, 1987, the legislation first introduced in 1985 in the wake of Operation Bluestar in the Punjab and prime minister Indira Gandhi’s assassination and thereafter extended for a two year period until it was finally repealed on May 23, 1995. The repeal of TADA followed burgeoning protests from the human rights’ movement all over the country. 

Justice Ranganath Mishra, then chairperson of the National Human Rights Commission had publicly stated that the act had ‘been prima facie abused in Gujarat.’ He convened a meeting on August 22, 1993, at which several chief secretaries and home secretaries of states were present, to push for the review of its application. 

The official admission of allegations of misuse of TADA is evident from a letter by former union home minister, S.B.Chavan, dated July 27,1994 to the chief ministers of all states where TADA was applicable. The letter emphasised that TADA should not be used against political opponents, trade union leaders, journalists, former judges and civil servants. The very need for such a letter is evidence that such abuse of the law had been taking place.

The statement of objectives of the Act specified that TADA that is reproduced verbatim within the new Bill, was meant to curtail overt acts of terrorism in Punjab and Haryana. A spate of terrorism-related violence in the two years that followed between 1985-87 exposed the ineffectivity of TADA for the specific purpose that it was ostensibly enacted. 

On the contrary, TADA in ten years of its existence was actually used, highhandedly, against the Indian civilian population in different states, albeit those sections that the police and governments decided were most inconvenient at that particular moment in time. 

TADA was used to stifle any form of democratic protest. For example, 57 women belonging to the progressive organisation of women protesting against GATT were arrested under TADA in  Nandyal in Andhra Pradesh during a prime ministerial visit. By 1995, in 22 of the 25 states TADA had been notified for application. In ten years a staggering 52, 998 persons were arrested all over the country under TADA, of which only 448 were convicted. The rate of conviction of TADA detainees  was less than one per cent.

Maximum TADA detentions took place in the state of Gujarat that arrested 19,000 persons under that law. Trade unionists, environmental activists and citizens belonging to the minority community were the sufferers. The tale of Mumbai in December 1992-1993 is a sorry record of partisan and brutal police behaviour (see pages 23-24) against the state’s minorities. In the aggression and frenzy unleashed by the Maharashtra and Mumbai police following the bomb blasts of March 1993, members of the minority community were threatened with indiscriminate arrests under TADA and huge monies extorted from them under this threat. Muslim businessmen had then alleged that as much as Rs. 25 crores had been extorted from them in this fashion. 

The National Minorities Commission also passed a unanimous resolution condemning the misuse of the law against the minorities. Justice Rajinder Sachar, a retired chief justice of the Delhi High Court and senior functionary of the People’s Union for Civil Liberties (PUCL) had stated on record, “TADA is being misused…After Bombay (bomb blasts) many Muslims have been arrested under TADA.”

The revised CLA retains the earlier definition contained within TADA of a ‘terrorist act.’ However under section 3(1) it widens the scope of the definition. Apart from intentions to overawe the government, strike terror, alienate any section and adversely affect harmony, the definition of a terrorist act  has been expanded further.

To this already wide definition, the Law Commission has added the words, ‘threaten the unity, integrity, security and sovereignty of India.’ This section three is very wide and over-arching in its definition and scope. It includes within it acts that are both violent and non-violent.

 Within the political scenario that confronts us at the moment a profound battle rages on. It is a battle for the ideological and political future f the Indian state. Details of the battle apart, a major and contested issue is on what and who constitutes the threat to the unity, security and sovereignty of India. Arguably, some of us feel that the divisive and pernicious politics of the BJP-RSS-VHP-BD combine, overtly manifest in senior functionaries who occupy government posts today and who have as their goal the transformation of the Indian state from its current democratic character to an authoritarian and sectarian one, is the singular and greatest threat to our unity, our integrity and our security. 

Saying, believing and campaigning for what we believe could, for the sake of argument, immediately attract the provisions of these draconian sections. 

The really dangerous aspect of the section is that it seeks to punish political ‘intent’ as much as the act itself. Section 3(1) of the Act states that it is an offence to conspire, attempt, incite, abet, or assist in the preparation of a terrorist act, or to knowingly harbour or conceal a terrorist. Membership of terrorist gangs, holding of property derived from terrorist funds are also offences under the Act.  Section 4(2) also provides that whoever commits or conspires or attempts or abets advocates, advises, facilitates the preparation or commission of a disruptive act or harbours a disruptionist would also come within the purview of this section.

This section clearly violates section 19 (1)(a) of the Constitution that guarantees freedom of speech and expression. For example, a poet or a cartoonist merely expressing the opinion that a plebiscite should be held to determine the future status of Kashmir could well be held and tried as a disruptionist if this Bill becomes law. This means that anyone can be detained for peacefully expressing their views on matters of ordinary political debate and if found guilty would be sentenced for a minimum sentence of five years, considerably longer than the envisaged international human rights standards.

Under section 5 of the CLA enhanced penalties can be given for offences under the Arms Act, 1959, the Explosives Act, 1884, the Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952 “with an intent to aid a terrorist or a disrputionist.” Offences related to the possession of arms have been linked to ostensible acts of terrorism in ways that are bound to make them deadly weapons in the hands of the police.

Section 3(8) of the proposed legislation makes the failure to disclose information to the police to prevent a terrorist act by any person liable to imprisonment for a year. All citizens have a moral duty to assist in the enforcement of law; the failure to do so here makes this omission a penal offence. Another way of legitimising police harassment and torture of relatives and friends of alleged terrorists? 

A critical feature of the Indian Constitution is the separation of the judiciary and the executive (Article 50). The CLA Bill seeks not only to erode this but also to vest extraordinary powers to the executive. The executive that is the government and its wing, the police have been given the power to frame all rules, mete out punishment, prescribe procedures, seize and confiscate property. Under section 6A the investigating officer (Superintendent of Police) can seize or attach property which at the stage of the investigation, he believes to be obtained by terrorist acts or the proceeds of terrorism.

In continuation of the thinking behind TADA, the CLA upholds the logic that special crimes need special procedures. Checks and balances in accordance with the basic rights of a citizen, rights relating to procedures for arrest, detention, ownership of FIRs and other police records, detailed at length in the CRPC, are given the complete go-by. Permanently.

Section 14c) of the CLA provides for not disclosing the identity of the witness even during cross-examination, while section 3(7) provides for the punishment to a person who may threaten the witness. Arbitrary tools for the police. It is a very serious matter that trade unions and other mass movements have been covered within the purview of the act. The provision implied in section 4(1)© is that if such organisations even by mistake become a party to violence, they can be booked under the section of ‘disruptive activities.’

The Bill gives no discretionary power of bail to the Court unless by prior consent of the public prosecutor. This provision from TADA was grossly misused especially in Gujarat. 

The Bill does not allow for appeal on the interlocutory order. Further, the Bill requires that the FIR must be ratified by the DGP within 10 days or the review committee within 30 days: since both are state authorities, it is unlikely that the verification will not take place. Section 13(5) provides that ‘a special court may if it thinks fit and for reasons recorded ….proceed with the trial in the absence of the accused or the pleader.’ 

This could allow for the grossest abuse. Section 18(2)(b) gives unlimited power to the police to retain the custody of the accused for 180 days without filing a charge sheet. Finally, section 17(3) restricts the period for appeal by the accused to only thirty days when Indian criminal law allows for sixty-ninety days.

Ironically all offences mentioned both in TADA and the CLA find mention in the Indian Penal Code –sections 121-A, 122, 124, 124-A, 153-A and 153-B, besides offences of rioting, grievous hurt, murder, dacoity and piracy.  The IPC also contains various offences relating to the Army, Navy and Air Force. In the past, for the protection of defence of the country, a statute like the Defence of India, Act 1962 was enacted which authorised the Central government to make such rules as appeared to be necessary for the Defence of India: civil defence, public safety, maintenance of public order, efficient conduct of military operations and security forces.

The experience of TADA and its brutal and insensitive application to the Indian civilian population is testimony of the desire and designs of a government and law and order machinery that wishes the experience to be repeated. Terrorism was not curtailed then, it was not even contained despite the existence of TADA On the contrary, thorough investigative procedures were given the go-by, dulling the professionalism of the law and order machinery that was simultaneously empowered by a brutal law to become trigger happy and break the law. Do we want this experience to be repeated? 

Archived from Communalism Combat, April 2000. Year 7  No, 58, Special Report 3

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