http://www.hinduonnet.com/fline/stories/20091204262400400.htm
COVER STORY
Victims always
VENKITESH RAMAKRISHNAN AND
AJOY ASHIRWAD MAHAPRASHASTA
The S.C. and S.T. (Prevention of Atrocities) Act has failed to make
Dalits any safer.
RANJEET KUMAR
An innocent survivor amidst scattered bodies, a scene after the
Ranveer Sena's carnage of Dalits at Shankarbigha in Jehanabad district
of Bihar on the eve of Republic Day in 1999. Dalit rights activists
say the Ranveer Sena, a private militia of Bhumihar landlords which
terrorised Dalits in the 1990s, is regrouping.
THE ascent of the Mayawati-led Bahujan Samaj Party (BSP) to power in
Uttar Pradesh on May 13, 2007, was seen as a defining moment in the
politics of Dalit empowerment in the country. The Scheduled Caste
(S.C.) leader of an avowedly "Dalit assertive" party had been Chief
Minister earlier too, but the difference this time was that her party
came to power on its own, without needing the support of other parties
and independent members.
Thousands of Dalits who gathered in the State capital, Lucknow, on
that day expressed the hope that atrocities against the S.Cs would
decline drastically under the new "single-party" regime. Many social
activists and observers who spoke to Frontline then also hoped that a
single-party government under a Dalit Chief Minister in the country's
most populous State would have a salutary effect on Dalits' condition
elsewhere in the country too.
Approximately a year later, papers and documents presented at a
two-day international seminar on Uttar Pradesh, organised by the
Observer Research Foundation (ORF), a Delhi-based think tank, provided
an indication of the situation on the ground. The papers documented
that "within a month of the [Mayawati] government's assumption of
office, seven Dalits were killed in Muzaffarnagar, while three Dalit
women were raped in the same district". The papers also revealed that
reports from areas such as Rae Bareli, Mohanlalganj, Lakhimpur Kheri
and Mahoba were of a similar nature and that atrocities against Dalits
continued in spite of the political gains made by the BSP.
The presentations at the seminar pointed out that the political
leadership found it difficult to implement what was perhaps its most
important Dalit empowerment programme – the allotment of patta land to
Dalits – on account of strong anti-Dalit sentiments within the
administration.
A field study presented at the seminar revealed that in scores of
villages in western Uttar Pradesh, in districts such as Baghpat,
Muzaffarnagar and Meerut, Dalits were unable to occupy patta land
allotted to them because of intimidation and in some cases even
physical prevention by upper-caste groups. Not surprisingly, sections
of the police and the administration were hand in glove with the
upper-caste elements. Such was their allegiance to the caste interests
that even repeated orders from the Chief Minister's Office to the
District Magistrates failed to have any effect in a number of cases.
The National Crime Record Bureau's (NCRB) statistics for 2007 for
crimes against members of the S.Cs and the Scheduled Tribes (S.Ts)
corroborated the presentations made at the seminar. The figures showed
that Uttar Pradesh topped the list on atrocities against the S.Cs and
the S.Ts, with 2,113 cases out of a total of 9,819. The data also
indicated a 10.2 per cent increase in crimes against the S.Cs and the
S.Ts at the national level. Uttar Pradesh accounted for 20.5 per cent
of all cases in India. The BSP's argument was that under the
"friendly" Mayawati regime more S.C. members made bold to register
cases against their oppressors.
There was merit in this argument, but the fact remained that Dalits
were at the receiving end in large parts of Uttar Pradesh, where the
politics of empowerment of the S.Cs and the S.Ts, the protection of
their interests, their physical safety and the assertion of their
constitutional rights had acquired, in comparative terms, the highest
political and electoral acceptability.
Social and political observers hark back to an observation made by
B.R. Ambedkar to explain this context. Ambedkar had said: "History
shows that where ethics and economics come in conflict, victory is
always with economics. Vested interests have never been known to have
willingly divested themselves unless there was sufficient force to
compel them."
Long-standing apartheid
Twenty years after the passage of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, the vociferous advocacy
of the same by almost all political parties and even the rise of the
politics of S.C.-S.T. empowerment across the country, it seems that
the quantum of "sufficient force" visualised by Ambedkar would have
been colossal. As the case of Uttar Pradesh indicates, the effective
implementation of the Act would take a lot more than electoral
victories and increasing political space.
The gaps in the implementation of the Act stand in stark contrast to
the convictions that underlay its enactment. In simple terms, the
legislation aims to prevent the various forms of offences by persons
other than members of the S.C. and the S.T. against members of these
communities. But studies have shown that it has systematically been
prevented from achieving its goal. A number of factors have
contributed to this, but the most important is the caste and class
prejudices in society. These prejudices have got institutionalised,
through religious and social practices, into a unique system of
long-standing apartheid. That they have a class character is also
evident; the Dalit and Adivasi communities that are discriminated
against constitute almost 80 per cent of India's poor.
The S.C./S.T. Act is seen to be empowering as it is the first
legislation to use and define the term "atrocities" committed against
the S.Cs and the S.Ts. Introducing the Bill, the then Union Law
Minister, B. Shankaranand, said the normal provisions of the existing
laws, such as the Indian Penal Code (IPC) and the Protection of Civil
Rights Act (PCRA), 1955, had been found inadequate to check the
atrocities, gross indignities and offences against the S.Cs and the
S.Ts. Therefore, the Act prescribes harsher punishments than the
punitive measures detailed in the IPC and the PCRA, which used only
the term "offences" vis-À-vis caste-related crimes.
The Act also introduced an executive system specifically to govern
justice for the S.Cs and the S.Ts in cases of 22 broad types of
atrocities relating to socio-economic discriminatory practices, which
are listed in it. This system should comprise special courts, a
special public prosecutor, nodal officers in each State, an S.C. and
S.T. protection cell, and State-level and district-level monitoring
and vigilance committees to identify atrocity-prone areas, and a
special officer appointed by the district head to look after each case
of atrocity. In actuality, in most States the full system has either
not been constituted or has been functioning ineffectively.
Gaps in implementation
ANU PUSHKARNA
Activists of the Dalit Sena staging a demonstration in New Delhi on
July 21 demanding action from the Bihar government to check atrocities
on Dalits.
The gaps in its implementation could be studied at two levels – the
executive and the judiciary. The National Human Rights Commission
(NHRC) noted in its 2002 report: "Under-reporting is a very common
phenomenon and the police resort to various machinations to discourage
S.C./S.T. [persons] from registering their cases, to dilute the
seriousness of the violence, to shield the accused persons from
arrests and prosecution."
A study done by National Dalit Movement for Justice (NDMJ), part of
the National Campaign for Dalit Human Rights (NCDHR), showed that
between 1992 and 2007 only 33 per cent of the atrocity cases were
registered under the S.C./S.T. Act. The majority of the cases were
registered under IPC sections and 1 per cent under the PCRA. It also
showed that the conviction rate of cases under the S.C./S.T. Act was
just 3.3 per cent for the country as a whole.
The figures at the level of the judiciary are equally pathetic.
Between 1992 and 2007, as many as 80 per cent of the cases heard by
the special courts (created under Section 14 of the Act) were not
registered under the Act. In 95.1 per cent of the cases charge sheets
had not been filed. The monitoring advisories set up in States on an
ad hoc basis by the Ministry of Social Justice & Empowerment (MSJE)
and the Ministry of Home Affairs (MHA) noted that in many cases the
police wilfully neglected the S.C./S.T. Act and did not register first
information reports (FIRs). Among the recommendations made were the
setting up of special police stations and the launching of awareness
campaigns about the Act.
The Ahmedabad-based Council for Social Justice (CSJ) has collected
documents of 400 cases pertaining to 2004 filed under the S.C./S.T.
Act in Gujarat. There are some startling revelations in them. Despite
Section 18 of the Act restricting anticipatory bail in atrocity cases,
anticipatory bail had been granted in 320 of the 400 cases.
Valjibhai Patel, secretary CSJ, told Frontline: "Rule 4(1) of the Act
says that there should be two panels of advocates in atrocity cases –
a state-appointed public prosecutor and a panel created by the
district head. In most of the cases, we see no such panels. The Act
states that an officer below the rank of DSP [Deputy Superintendent of
Police] cannot investigate the case. Many of the accused have been
acquitted by courts just because the case was investigated by officers
below the rank of DSP. I have seen in Gujarat rape cases of Dalits
being sent to Lok Adalats meant for only compoundable offences."
Plight of women
Dalit women face the worst atrocities as both women and Dalits. A
seminal study conducted by the NCDHR ("Dalit Women Speak Out", 2006)
enumerating the experiences of 500 Dalit women from Andhra Pradesh,
Bihar, Tamil Nadu and Uttar Pradesh presents a shocking picture of the
conditions they live in. The study records the violence – physical,
sexual and mental – inflicted on Dalit women. The study reinforces
calls for comprehensive preventive measures to be put in place to
eradicate caste discrimination and violence against Dalit women, in
conjunction with measures to help Dalit women achieve their rights.
Valjibhai Patel says that though the Act mentions punitive measures
against negligence, to date not a single official in India has been
punished despite serious violations of the Act all over the country.
He says the judiciary should also be made accountable, not just the
police and the district administration. "There are many cases of
atrocities where the accused has been punished under the IPC but has
been acquitted under the S.C./S.T. Act. In Gujarat, one of the
professors who raped his Dalit student got life imprisonment but was
acquitted under the S.C./S.T. Act. The Khairlanji case is a big
example where the people now serving the death penalty were acquitted
under the S.C./S.T. Act. How is this possible? This means there is
some problem in investigation and pursuance of the Act," he says. The
CSJ has filed a petition in the Supreme Court regarding the violation
of the Act, the first hearing of which will be on December 3.
Budget and policy
The MJSE is responsible for the implementation of the S.C./S.T. Act.
To implement the Act effectively, the MSJE has to provide for special
courts for the trial of offences and for the relief and rehabilitation
of victims of such offences. The Ministry provides financial resources
for the implementation of the Act through the Special Central
Assistance (SCA) from the Union government, which is 50 per cent of
the total expenditure of the States and the total expenditure of the
Union Territories.
However, the allocation of funds every year under the SCA has seen a
steady decline. Under the Act taluk- and mandal-level officers are
responsible for disbursing compensation and this work has to be
monitored by the District Magistrate/Collector and the district
monitoring and vigilance committee. Separate funds have to be given to
police stations/courts towards travelling allowance/dearness allowance
(T.A./D.A.) of victims and witnesses on FIR investigation and it has
to be monitored by the Superintendent of Police (S.P.) and the
District Judge (D.J.). There is also clear direction in the Act that
arrangements should be made for maintenance expenses and reimbursement
of medical costs of victims of atrocity.
In 2008, the Dalit Arthik Adhikar Andolan, also a part of the NCDHR,
looked into the actual budget for the S.C./S.T. Act in each State and
estimated the amount every State actually needed for its proper
implementation. Its calculations have been done on the basis of the
number of compensation cases in each State, the average cost of
running the present number of special courts and special police
stations, and relief and rehabilitation measures for victims specified
in the Act.
The results in all the States reveal that the actual budget allocated
for the Act is much less than what is required. This is despite the
fact that both the Central government and the State governments share
the amount made available for the programme under the special
component plan. Uttar Pradesh ranks the highest in terms of this
deficit, and its figure stands at a staggering Rs.1,640 crore.
Rajasthan, also a State with one of the highest rates of caste crimes,
is second with Rs.1,157 crore, and Bihar follows with Rs.1,085 crore.
According to the actual budget allocated, as shown in the MJSE annual
report, Uttar Pradesh, since 2007, ranks the highest in the allocation
of funds for the Act, with around Rs.950 crore, followed closely by
Andhra Pradesh and Karnataka. Among the big States, the lowest
allocation is in Bihar, with just Rs.27 crore. Chhattisgarh's
allocation is Rs.40 crore. In Haryana, which has one of the largest
numbers of caste crimes, the allocation is only Rs.60 crore. In the
South, Tamil Nadu ranks the lowest, granting around Rs.235 crore.
An NCDHR analysis of the qualitative investments of the Central
government shows that in this year's Budget the amount spent on wage
labour, school education, basic health, shelter, nutrition and primary
necessaries involving Dalits is 62.44 per cent of the total special
assistance funds. In sectors where the upper classes dominate, such as
higher education, entrepreneurial development, and land and asset
building, the allocation is 37.56 per cent. State budgets present a
similar trend. Most of the funds still go to the traditional
occupation of Dalits, such as cleaning, agricultural labour, leather
works, and so on, which is in contrast to the theme of the SCP of
systematic empowerment of Dalits in all sectors of production. It
therefore does not surprise when the S.C./S.T. Act, a tool for legal
empowerment of Dalits, lacks funds for its implementation.
The aggressive pursuit of neoliberal economic policies by governments
at the Centre and in many States over the past decade has also
resulted in an increase in atrocities against the S.Cs and the S.Ts.
Ironically, even the Uttar Pradesh government is not free from such
ventures. The government's ambitious 1,047-kilometre-long Ganga
Expressway project, connecting Greater Noida near Delhi and Ballia in
eastern Uttar Pradesh, was expected to acquire 64,000 hectares of
land, 70 per cent of which is agricultural land. A number of observers
and social analysts pointed out that this acquisition would militate
against the basic livelihood of a large section of Dalits who were
into share-cropping with upper-caste, land-owning farmers.
According to NCRB data since 2005, Uttar Pradesh ranks the highest in
the number of cases of caste atrocities, followed closely by Madhya
Pradesh, Rajasthan, Andhra Pradesh, Bihar and Gujarat. "Acts like
these empower and help organise Dalits. With greater awareness about
the Act, we have seen a rise in caste atrocities every year," said
Sirivella Prasad of the NDMJ.
The trend clearly shows that caste atrocities have increased with
greater social and economic mobility of the S.Cs and the S.Ts which
disrupts the exploitative status quo of a feudal society.
Many activists note that atrocity cases happen when Dalits try to
avail themselves of legal resources; assert their right over land,
water, and livelihood; assert their right to choose their occupation;
attempt to participate in the cultural life of the community; assert
their right to vote; and are victimised to satisfy the superstitions
of dominant castes (witchcraft, human sacrifice). With respect to the
S.Ts, activists say most of the atrocities happen when they try to
organise themselves politically against the combined exploitation of
government officials and industrial goons in the hinterland.
However, the Act is not clear about the rules with respect to social
and economic boycott of the S.Cs and the S.Ts and there is an ongoing
advocacy campaign among Dalit groups to seek amendments to certain
provisions of the Act to make it stronger. Said Colin Gonsalves of
Human Rights Law Network: "Unless the institutional caste bias is
systematically done away with at the policy level and proper action is
taken against negligent officials, violations will continue to happen.
The legal system has failed the S.Cs and the S.Ts. The Act is a clear
instance of wonderful legislation but useless implementation. Our
judiciary needs at least 15 per cent reservation for the S.Cs right
from the lower courts to the Supreme Court. The Rajasthan High Court
has not had a single Dalit judge since Independence – absurd for a
State that ranks very high in caste crimes."
To put it simply, caste is a combined social system of occupation,
endogamy, culture, social class and political power, which has
historically been exploitative for Dalits and Adivasis. In this
context, the S.C./S.T. Act and its status echo Ambedkar's words: "This
condition obtains even where there is no slavery in the legal sense.
It is found where, as in caste system, some persons are forced to
carry on the prescribed callings which are not their choice."
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