Mainstream, Vol XLVIII, No 39, September 18, 2010
Khairlanji Dalit Massacres: Justice for the Victims Aborted
A K Biswas
Part-I
"If someone takes someone's life (deliberately and not accidentally)
then he forfeits the right to his life".
—John Stuart Mill
The judgment delivered by a Division Bench in quadruple murders of
members of the Bhotmange family, village Khairlanji, district Bhandara
in Maharashtra left everyone with a sensitive mind shocked and
dismayed. Surekha Bhotmange and her 18-year-old daughter and two sons,
including one who was disabled, were brutally murdered by an
upper-caste mob on September 29, 2006. The Bench concluded that the
accused, who were sentenced to death by the District and Sessions
Court, Bhandara, were not driven by hatred against the Bhotmange
family members, who were Scheduled Castes. The High Court held that
the accused took revenge! This sounds like a joke widely prevalent in
pre-independence India. The bureaucracy often termed starvation death
as death due to malnutrition.
Justice and fairness of treatment for the victims belonging to the
socially disadvantaged is practically non-existent in India. In
denying justice, very sound and cogent reasons and arguments couched
in ceremonial legalese are advanced on behalf of the aggressors to
satisfy analytical quest. However, the caste system, needless to note,
prompts discrimination, which undoubtedly is the root cause for denial
of justice to the Dalits and adivasis. Khairlanji is a case in point.
The dominant upper castes did not allow the Bhotmange family to build
a pucca house, though they were financially well off. Was this out of
hatred or revenge? Surekha, wife, and 18-year-old Priyanka, daughter
of Bhaiyyalal Bhotmange, gave evidence in a case of atrocities against
a fellow Dalit, Siddharth Gajabhiye of a neigh-bouring village
resulting in the arrest of a few OBC accused. Soon out on bail, they
eliminated the entire family in broad daylight. Fleeing home,
Bhaiyyalal alone escaped death. Six of the accused had, noted the
court, "removed the clothes of Priyanka before disposing of her
severely injured dead body and thereby wanted to get satisfaction to
their sexual eyes at such circumstances". Almost every inch of her
body bore marks of bruises; nonetheless the court held that the
accused had no intention to "dishonour or outrage her modesty". And
the Division Bench reversed the death sentences for the accused.
Part-II
Prevention of Atrocities Act (POA) observed More in Violation: Dalit
Hatred Foundation for pan-Indian Hindu Solidarity and Unity
OVERSIZE hatred against the Dalits provides the commonest pan-Indian
thread for unity and solidarity among the Hindus. The former's efforts
to move up in life through hard work and perseverance is viewed with
strong distaste, if not abhorrence, and therefore thwarted. An
instance is cited from the highland of culture—West Bengal. A Lodha
tribal girl, Chuni Kotal, graduated through thick and thin. Several
years of efforts thereafter did not secure her a job, though the State
Government all along tomtomed shining achievements in social
development aimed at uplift of the SCs and STs. She ultimately
enrolled for an MA degree in Anthropology in Vidyasagar University,
Midnapur. One of her teachers, Falguni Chakraborty, used to taunt and
humiliate the Lodha girl inside and outside the classroom, seminars
and group discussions, calling her as one of a criminal tribe! She
lodged complaints against him to the Vice-Chancellor of the
University. Her grievances went unheeded for over two years for
reasons not known. Driven to desperation by the tormentor, the forlorn
girl committed suicide on August 16, 1992, after three agonising years
in the University. No case under the POA was instituted against the
accused. The country is, however, loudly told every now and then that
the feeling of caste or tribe does not exist there, a notion peculiar
to that land and breed of rulers in politics and administration.
An Enquiry Commission with a retired judge of the Calcutta High Court,
Justice S.S. Gangopadhyay, declared:
On a consideration of all the materials on record we are constrained
to hold, therefore, that the allegations brought against Falguni
Chakraboraty by Chuni Kotal were not sustainable and further that
Falguni Chakraborty never practised nor he had any reason to
discriminate against Chuni simply because she was a Lodha. It may be
that on occasions Falguni Chakraboraty took Chuni to task for her late
or non-attendance or for some such reasons. These were mere
trivialities which occur as a matter of course between the teacher and
the taught without any personal involvement from either side.
These trivialities were blown big beyond all proportions to transform
them into items of the petition of complaint. On the findings arrived
by us, we conclude that the behaviour meted out by Falguni Chakraborty
was not as to cause intense mental pain to Chuni so as to break her
heart and lead her ultimately to commit suicide.1
The Commission exonerated Falguni Chakraborty of all charges. White as
lily and pure as morning dew, the accused walked free with his head
high and reputation unsullied.
Part-III
Crime-blindness a Peculiar Disease if Dalits and Tribes are Victims
DR B.R. AMBEDKAR had bemoaned that Hindus have no appreciation for
merit. There is, however, appreciation of merit of caste-men only. It
seems the Hindus do not see the crimes of their caste- men too. In
other words, they are blinded by prejudice to see the atrocities by
upper-caste men on Dalits. And administration of justice too is a far
cry, if Khairlanji suggests anything. One is compelled to recall the
verdict handed down by Justice Raouf Abdel-Rahman of Kurdish origin,
who tried, convicted and finally sentenced Saddam Hussein to death.
The judge was "born in the Kurdish town of Halabja, where 5000
residents were killed in 1988 after Saddam's forces launched a
chemical gas attack on the town in the deadliest chemical weapons
attack since the First World War," reported The Sunday Times, London,
March 16, 2007. No Sunni (Saddam was a Sunni) could deliver justice to
the Kurds.
The POA stands virtually thrown to the trash-can by a nexus dominating
India's socio-political-administrative and judicial scenes. The
alienation of the Dalit, if not already complete, may not take much
time to reach that dead-end. In common with the adivasis, they are
allowed to survive but not to prosper. Their growth and affluence, if
any, is eyesore to their non-Dalit neighbours. A Dalit in tattered
cloth, an emaciated frame with illness of every description, marked by
ravages of poverty, would immensely gratify the ego of the dominant
classes. Dalit and tribal representatives in Parliament and State
Assemblies are voiceless. They are afraid to ventilate their views for
their communities even in their peril, lest their views hurt the
dominant ego. Dalits elected to legislative bodies, States or Union
are spineless animals, thanks only to the system of joint electorates,
a historical gift (or curse?) of the Poona Pact in 1932. At this rate
certainly the ghost of Ramsay Macdonald may not be far off to emerge
from his graveyard and revisit the accursed country for the liberation
of the enslaved souls. And such demands might be heard sooner than
later for grant of separate electorates to tear off the elastic
docility of the adivasi and Dalit MPs and MLAs.
Part-IV
What are the Offences for Punishment under the POA?
THE verdict says that no caste hatred provoked the Khairlanji
massacres nor did the victim dwell on it in the FIR nor deposed before
the trial court. Hatred is not a condition precedent for constituting
an offence under the POA. Section 3 of the Act provides punishment for
offences of atrocities as follows: "(1) Whoever, not being a member of
a Scheduled Caste or a Scheduled Tribe, (i) forces a member of a
Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or
obnoxious substance; (ii) acts with intent to cause injury, insult or
annoyance to any member of a Scheduled Caste or a Scheduled Tribe by
dumping excreta, waste matter, carcasses or any other obnoxious
substance in his premises or neighborhood; (iii) forcibly removes
clothes from the person of a member of a Scheduled Caste or a
Scheduled Tribe or parades him naked or with painted face or body or
commits any similar act which is derogatory to human dignity; (iv)
wrongfully occupies or cultivates any land owned by, or allotted to,
or notified by any competent authority to be allotted to a member of a
Scheduled Caste or a Scheduled Tribe or gets the land allotted to him
transferred; (v) wrongfully dispossesses a member of a Scheduled Caste
or a Scheduled Tribe from his land or premises or interferes with the
enjoyment of his rights over any land, premises or water; (vi) compels
or entices a member of a Scheduled Caste or a Scheduled Tribe to do
'begar' or other similar forms of forced or bonded labour other than
any compulsory service for public purposes imposed by the Government;
(vii) forces or intimidates a member of a Scheduled Caste or a
Scheduled Tribe not to vote or to vote to a particular candidate or to
vote in a manner other than that provided by law; (viii) institutes
false, malicious or vexatious suit or criminal or other legal
proceedings against a member of a Scheduled Caste or a Scheduled
Tribe; (ix) gives any false or frivolous information to any public
servant and thereby causes such public servant to use his lawful power
to the injury or annoyance of a member of a Scheduled Caste or a
Scheduled Tribe; (x) intentionally insults or intimidates with intent
to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any
place within public view; (xi) assaults or uses force to any woman
belonging to a Scheduled Caste or a Scheduled Tribe with intent to
dishonor or outrage her modesty; (xii) being in a position to dominate
the will of a woman belonging to a Scheduled Caste or a Scheduled
Tribe uses that position to exploit her sexually to which she would
not have otherwise agreed; (xiii) corrupts or fouls the water of any
spring, reservoir or any other source ordinarily used by members of
the Scheduled Caste or the Scheduled Tribes so as to render it less
fit for the purpose for which it is ordinarily used; (xiv) denies a
member of a Scheduled Caste or a Scheduled Tribe any customary right
of passage to a place of public resort or obstructs such member so as
to prevent him from using or having access to a place of public resort
to which other members of public or any section thereof have a right
to use or access to; (xv) forces or causes a member of a Scheduled
Caste or a Scheduled Tribe to leave his house, village or other place
of residence, shall be punishable with imprisonment for a term which
shall not be less than six months but which may extend to five years
and with fine."
If one is mentally retarded or a congenital idiot, he might fail to
appreciate these provisions. DNA, a reputed Mumbai daily, reported on
July 15, 2010: "The High Court maintained the lower court's ruling
that there was no evidence to prove the existence of caste hatred. On
the contrary, the court relied on the witnesses and evidence on record
to say that this was a case of revenge killing." Such approach goes
against the very grain of section 3 of the POA. The Sessions Court
judgment in September 2007 took a plea that the complainant "had not
mentioned anything about the casteist abuses by offenders against his
family in his initial complaint and had failed to voice it during his
testimony". Again the very attitude, exposing complicity at various
levels, is repugnant to the provision of law. It is a sad experience
in general that the police does not entertain an FIR if the victims of
atrocities are Dalits and tribals and, if at all, they would not
invoke the provisions of POA. The essential condition precedent for
action under POA is that the perpetrators of atrocities are members
not belonging to Scheduled Caste or Tribes, whereas the victims are
either SCs or STs.
Weren't the Sessions Court free to elicit information on the caste
angle by seeking information and to give a thorough dressing down to
the SPP and others for failure thereof? Courts are known to entertain
news report suo motu for initiating judicial proceedings.2
Part-V
Ujjwal Nikam, a Trojan Horse appointed Special Public Prosecutor of
Khairlanji Massacres
THE Maharashtra Home Minister R.R. Patil, on a visit to Nagpur, had
suo motu engaged Ujjwal Nikam as the Special Public Prosecutor (SPP)
for the Khairlanji massacre case that propelled Dalits, their
sympathisers and human rights activists to launch a global campaign
from Tokyo to Washington; Sydney to The Hague for justice. The
campaigners, who staged demonstrations to this end before Indian
embassies abroad, never demanded engagement of Nikam as the SPP. A
characteristic feature in the case ab initio is that the caste angle
involving the accused and their victims was deliberately sidetracked
or over-looked in the FIR, investigation, prosecution and judicial
appreciation as also in the verdict. Six of the convicts were
sentenced to death and two to life imprisonment by the District and
Sessions Court.3 The Bombay High Court commuted the death setntences
of the six convicts to life imprisonments. Tracing the progress of the
case, DNA observed that the initial lapse was in the police
investigation. It further stressed that "while the Dalit groups
continue to decry the attack as caste violence, the fact is that the
prosecution could not bring it on record before the court".4 Several
Dalit groups at home too championed the cause of justice for the
Bhotmange family. In a letter dated November 12, 2007 to the then
Chief Minister, Vilasrao Deshmukh, Khairlanji Action committee had
called attention to the callousness of the Special Public Prosecutor
(SPP) Nikam in presentation of evidence. It stated:
The basis of this crime, that is, casteism, is not highlighted in the
evidence adduced by the prosecution. It seems the case is being
treated by Nikam, SPP, as a mere murder trial. The basis of all that
happened in Khairlanji is casteism and this must be emphasised in all
its nakedness. That will only describe the crime in the correct
perspective.
Contrary to the above, we have observed that Ujjwal Nikam, SPP, has
mitigated the edge of casteism. This becomes clearer if you go through
the depositions of [survivor] Bhaiyyalal Bhotmange and more
particularly [witness] Siddharth Gajabhiye. Nikam has not asked vital
questions to both the witnesses regarding the land dispute, house
destruction, the abuses and vulgar gestures made by [acquitted
accused] Purushottam Titarmare and [convicted accused] Jagdish
Mandlekar to [deceased victim] Priyanka. The prosecution should have
brought this on record.5
The Maharashtra Government seems to have thrown this important letter
to the dustbin. Any government in India disdainfully treats letters,
if any, addressed by underprivileged communities. The SPP, Nikam,
without any shadow of doubt, is guilty of dereliction of duty and
breach of trust. He has favoured the accused and deliberately acted
against the interest of the victims, exposing a nexus, blessed by
political hierarchy.
Bhalchandra Mungekar, former Vice-Chancellor, Bombay University, as
also former Member, Planning Commission, observed very aptly: "The
reversing of the death penalty and not considering the case under the
Atrocities Act is absolutely unjust. The ruling will encourage the
perpetrators of the crime and this would render the Act meaningless."
On the other hand, an American-born Indian writer, scholar and Dalit
activist, Gail Omvedt, held that the verdict was proof that special
Indian courts should tackle cases of atrocities separately. "Most of
the courts in India are not sensitive to instances of atrocities on
Dalits, women and other minorities. There is a need for reservation of
courts to tackle these issues. Here was a case where a Dalit family
was massacred by members of the upper caste, and yet the verdict was
not just".6 These observations articulate the feelings and aspirations
of the Dalits pithily.
Tailpiece
A British barrister, named Fuller, with roaring legal practice in
Agra, had slapped one Katwaroo, a Dusadh from the Saran district of
Bihar, in 1876. He fell down on the ground and died in a few minutes.
He was the barrister's syce (coachman). He had enlarged spleen in a
morbid condition. Following an enquiry by an ICS officer, Leeds, who
was the Joint Magistrate, Agra, Fuller was prosecuted u/s 323 IPC
(simple injuries), convicted and fined Rs 30 to be given to the
deceased's wife. The matter rested there.
Lord Lytton, the Governor-General of India, one morning read a
reference to it in a Calcutta newspaper alleging that the colonial
rulers were biased and insensitive to the Indians, who are physically
abused and tortured by the English-men with impunity in general.
Katwaroo's murder was cited as a case in point. The supreme authority
immediately summoned the case records from the Governor of the
North-Western Provinces (now Uttar Pradesh) along with the comments of
the Chief Justice, Allahabad High Court. Highly displeased with the
miscarriage of justice and inadequacy of punishment awarded to the
barrister coupled with the apathetic attitude of the local government
and High Court, the Viceroy, Lytton, indicted them all in the
following order:
"The Governor-General in Council cannot but regret that the High Court
should have considered that its duties and responsibilities have been
adequately fulfilled by expression of an opinion."
He also regretted that the local government should have made "no
enquiry until directed by the Government of India to do so into the
circumstances of a case so injurious to the honour of the British rule
and so damaging to the reputation of British justice in this country."
Having lambasted the High Court and the government of the NWP, Lord
Lytton's minutes ran further:
"The Governor-General in Council cannot but doubt that the death of
Katwaroo was the direct result of the violence used towards him by Mr.
Fuller."
In the same breath, he strongly deprecated the British masters who
were habituated to treat their Indian servants with cruelty as coward
and brutal. He warned them that their "habit of resorting to blows on
every trifling provocation should be visited by adequate legal
penalties and those who indulge it should reflect that they may be put
in jeopardy for a more serious crime."
His order indicated that the accused barrister be charged for murder
and punished accordingly.7 Besides, he placed the Joint Magistrate,
Leeds, who tried Fuller for simple injuries, under strict surveillance
by the government with orders not give independent charge as District
Magistrate until his perfor-mance and conduct were considered
satisfactory. Such intervention from the Governor-General of India,
favouring an untouchable in colonial India remains unrivalled down to
this date. The contrary is exemplified by the Khairlanji massacre
trial. India cannot boast of an intervention remotely reminiscent of
Lord Lytton.
Before his death, Rabindranath Tagore felt that India would sooner or
later be liberated from foreign yoke. Sounding a warning, the poet,
however, had cryptically said: "Let us hope there would not be any
occasions to believe we were better under British rule!"
It may not be a surprise if independent India's systems in place drive
the vulnerable and disadvantaged to remember Tagore as prophetic. They
were secured of life and properties, which are at jeopardy everywhere
in India. Dalit and adivasi liberation is yet a long way.
FOOTNOTES
1. Suman Chattopadhyay, Ananda Bazar Patrika, Calcutta, June 6, 1995.
2. A Division Bench, comprising Chief Justice K.S. Radhakrishnan and
Justice C.K. Buch, Gujarat HC, began 'suo motu proceedings' against
Hookah Bars. Raising fears over flourishing business of hookah bars in
Ahmedabad, the Bench Friday, May 16, 2009 started suo moto trials and
issued notices to the State Government, AMC (Ahmedabad Municipal
Commissioner) and city Police Commissioner, respondents in this
regard. The Khairlanji massacres fell to the blind eyes, deaf ears and
heartless souls who feigned ignorance as victims did not mention the
caste angle in the FIR or evidence before the trial court!
3. Accused Sakru Binjewar, Ramu Dhande, Shatrughan Dhande, Vishwanath
Dhande, Jagdish Mandlekar and Prabhakar Mandlekar awarded death
sentences and two others, Gopal Binjewar and Shishupal Dhande, life
imprisonment.
4. DNA, July 15, 2010, 'Nikam diluted caste-hatred angle in Khairlanji case.'
5. The Hindu, July 29, 2010. 6. DNA, ibid.
7.A.K. Biswas, 'Common Man and Justice in British India', Mainstream
Annual 1994, New Delhi, November 26, 1994, pp. 92-94.
The author is a former Vice-Chancellor, B.R. Ambedkar University,
Muzaffarpur, Bihar. For comments and observations, contact him on
born.bengali@gmail.com
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