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Why the Prevention of Atrocities Act doesn't work

By Subhash Gatade

The Ministry of Social Justice recently proposed important amendments in the SC & ST ( Prevention of Atrocities) Act 1989 to simplify the process of hearings and strengthen investigation mechanisms

..In discussing the demands of social justice today, the priority of critical reasoning cannot but be central. But how do we analyse these demands? In probing the idea of social justice, it is important, I would argue, to distinguish between an arrangement-focused view of justice, and a realisation-focused understanding of justice. Sometimes justice is conceptualised in terms of certain organisational arrangements — some institutions, some regulations, some behavioural rules — the active presence of which indicates that justice is being done. The question to ask here is whether the demands of justice must be only about getting the institutions and rules right?

- Excerpted from Amartya Sen's Hiren Mukherjee lecture in the Lok Sabha, organised by the Speaker, August 12, 2008

The recent move by the Ministry of Social Justice to go for important amendments in the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (POA) 1989 supposedly to simplify the process of hearings and strengthen investigation mechanisms has largely gone unnoticed.

According to reports appearing in a section of the media the ministry is contemplating amendments in Section 14 of the Act which would facilitate establishment of special courts for speedy trials in case of atrocities against scheduled castes and scheduled tribes. It is also being proposed that, in case of serious offences like murder and rapes against these marginalised sections, a detailed report should be sent to the Centre and the National Commission on SCs and STs within four days of filing of First Information Reports.

Although the contours of the proposed amendments are not available it is expected that the special courts would be authorised to admit cases under these Acts directly. As of now the special courts cannot directly entertain cases under these Acts without following committal proceedings which could cause further delays in trials.

Close observers of the dalit/tribal human rights situation in the country would comment that the proposed amendments on behalf of the government were long overdue.

In an inter-state council meet called to deliberate on the specific issue of dalit rage in the aftermath of the Khairlanji killings the prime minister himself had admitted that the continuing atrocities against weaker sections is a 'national disgrace in a civilised society'. (The Hindu, December 10, 2006). He also lamented that 'implementation of SC and ST (Prevention of Atrocities) Act has not been effective' and 'cases continue to be registered under weaker sections of IPC'. Union home minister Shivraj Patil, in his address at the meet, had also mentioned 'tightening the police machinery as it is found to be wanting in reining in the perpetrators of dalit atrocities.'

In a Convention organised under the aegis of her ministry, the Social Justice Minister Meira Kumar had herself pointed out that "the conviction rate in cases registered under the Protection of Civil Rights Act is a mere 3.75%. Besides, 75 to 77% of cases of crimes against dalits are pending despite the already-in-place special and designated courts" (January 12, 2005, The Telegraph). The Union home minister Shivraj Patil, who was also present at the Convention, had also "acknowledged that the system was not delivering justice and existing laws safeguarding the rights of backward classes may have to be changed or tightened."

While the proposals being contemplated are welcome, the point worth deliberating is whether the main problem in curbing atrocities against dalits and tribals is the lacunae in laws or something else. The necessity for enactment of this Act had arisen because, under prevailing conditions, the Protection of Civil Rights Act (1955) and normal provisions of the Indian Penal Code were found to be inadequate to provide safeguards. This is important because when the SC and ST (POA) Act was enacted in 1989, it had proved to be a pioneer in many ways. It provided for not only appointment of special courts, punishment for neglect of duties of officials, forfeiture of property of the perpetrators, confiscation of arms from the dominant castes in the area, but even asked for distribution of arms to the downtrodden.

But it is disturbing to note that all the radical provisions supposedly formulated to ensure justice to the SCs and STs (to quote

Justice V K Krishna Iyer) 'proved to be impotent and ineffectual in practice'. In a Foreword to a book Dalit Utpidan aur Vidhik Upchar, by P L Mimroth, November 2000, Delhi, he further adds that the aim behind these attempts was to have a 'more effective, comprehensive and punitive provisions of law'. However 'the ruling classes saw to it that, at the functional level, the legislations were paper tigers'.

And Justice Krishna Iyer is not the only person who thought along these lines. There have been innumerable reports detailing how the local police in connivance with the perpetrators themselves, sabotages implementation of laws basically meant to protect the dalits and tribals. It is noticed that instead of filing cases under the POA act, it prefers filing cases under the normal provisions of the Indian Penal Code, which facilitates release of the accused on bail easily. It also facilitates filing of 'counter cases' against the victims, so that a compromise could be reached. The Third Report of the NPC (New Delhi :GOI, 1980 ) had rightly underlined how "false criminal cases are sometimes engineered merely for the sake of making arrests to humiliate and embarrass enemies of the complainant, in league with the police for corrupt reasons."

A related phenomenon is the way in which the powers-that-be take steps to deter enlightened people from fighting for the constitutionally granted rights of dalits and tribals. Human Rights Watch Report (Vol 4, no. 15, June 1992) shares details of how the criminalisation of social activism takes place in India. In its much acclaimed report Broken People - Caste Violence Against India's "Untouchables" (1999) Human Rights Watch repeats how 'State agents have acted directly and forcefully against those attempting to claim their rights. Dalit activists throughout the country are charged with being "terrorists", "threats to national security" and "habitual offenders"'.

The 'Report on Prevention of Atrocities against Scheduled Castes' (NHRC, 2004, Delhi) similarly underlined the way the 'State has failed in this respect' on 'several fronts' while ensuring justice to these sections. These include 'failure to effectively implement the laws relating to atrocities against SCs and STs which is 'reflected both in respect of preventing violence from taking place' as well as in the 'inability to punish perpetrators of violence after the crime is committed'; 'failure to act against its own agencies involved in the commission of violence' and 'failure to strengthen the watchdog institutions' . 'The failure of the State vis-à-vis mobilisation of caste Hindus in favour of social democracy embedded in the Constitution and various laws and state policies' is palpable. This has, in turn, 'created ambivalence in its intentions and contradictions in its actions'.

The Sixth Report of the National Commission for SCs and STs (1999-2000 and 2000-2001) had expressed its deep sense of dissatisfaction over the way all these measures are implemented. While commenting that "the number of cases registered under Prevention of Civil Rights Act and SC and ST (Prevention of Atrocities) Act has been showing a downward trend" indicating a healthy development, "it exposes the way this reduction in the number of cases has been arrived at". But from its reviews with various state governments the Commission is of the view that a large number of cases go unregistered, mainly because of the reluctance on part of the police officers to register the cases and also because of lack of awareness among the members of these communities about the provisions of these acts, reads the preface of the report.

A detailed and systematic study of 400 judgments under the POA Act, done by Vajibhai Patel, Secretary of Council for Social Justice (CSJ), is an eye-opener. (Communalism Combat, March 2005). It tells us that the utterly negligent police investigation at both the higher and lower levels coupled with a distinctly hostile role played by the public prosecutors is the main reason for the cases being deemed unsuitable under the POA. It is worth noting that he has meticulously documented the judgments delivered under this Act since April 1, 1995 in the Special Courts set up in 16 districts of Gujarat. The study also blasts the common perception that the inefficacy of this law is due to false complaints being lodged or compromises between the parties. It says it is the complicit State that has rendered the Act toothless.

The CSJ study rightly notes that '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.'

It is possible that all these details where the State comes out in rather unflattering terms could be brushed aside as a story repeated ad nauseam. All the talk of dalit atrocities could be presented as another extension of the way in which a third world State unfolds itself. But the key point worth emphasising is that caste atrocities, much like gender oppression or racial atrocities, have a specificity which transcends the binary existence of 'State as perpetrator' and 'people as victims'. In fact they implicate the partisan role played by the people themselves.

The 'Report on Prevention of Atrocities against SCs (2004) ' prepared by NHRC presents details of the way in which civil society presents itself. Civil society, it says, becomes a distinct beneficiary of caste-based order and it helps perpetuate the existing unequal social reactions frustrating attempts to democratise society. Through the customary arrangements, the dominant classes are assured of social control over people, who will continue to abide by their commands, without any protest.

Of course the uncivil nature of civil society presents before us a unique challenge where the need then becomes to rise above a mere discourse on civil and constitutional rights and address the failure of the largest democracy of the world to go beyond mere form. We have to appreciate that it concerns the greater hiatus that exists between constitutional principles and corresponding ethical ones and practice.

It was a manifestation of this real hiatus that when, Bhanwari, a Saathin from Women's Development Programme in Rajasthan was raped by the villagers, the trial judge acquitted the accused on the reasoning that 'rape is usual' and an 'upper-caste man could not have defiled himself by raping a lower-caste woman.'

InfoChange News & Features, October 2008