http://timesofindia.indiatimes.com/home/sunday-toi/special-report/The-Buddha-is-not-smiling/articleshow/6212008.cmsThe Buddha is not smiling
Manoj Mitta, TNN, Jul 25, 2010, 12.05am IST
Whenever a caste Hindu kills a Dalit, does that crime necessarily
qualify to be called a "caste atrocity"? Is there any so-called
"judicially manageable standard" to determine whether such an offence
was motivated by caste prejudice? These fundamental questions have
been thrown up by the Bombay High Court's judgment this month in the
much-touted Khairlanji case in which a mob of caste Hindus lynched
four members of a Dalit family four years ago.
The high court verdict proved controversial because, even as it
awarded an exceptionally stiff sentence of 25 years to eight accused
persons, it upheld their acquittal by the trial court on charges
pressed by the CBI under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act 1989. Thus, the denial of the atrocity
label did not quite conform to the stereotype that the upper
caste-dominated judiciary is indifferent to crimes against outcastes.
Short of the death sentence, there was little scope for the high court
to impose a higher penalty.
Yet human rights defenders and Dalit activists are crying foul. This,
because of the court's refusal to acknowledge the caste angle in the
Khairlanji case. Many see this as a setback to the larger challenge of
enforcing the atrocity law or preventing such incidents. Even 20 years
after the enactment of this special law, there is no clarity on when
its harsh provisions should apply to offences committed against
Dalits. For, the law, which gives teeth to the constitutional ban on
untouchability, divides caste atrocities into two broad categories:
* The first covers typical forms of untouchability: forcing a Dalit to
drink or eat any "inedible or obnoxious substance", dumping excreta or
carcasses on his premises, parading him naked or with painted face,
obstructing a Dalit from accessing a "place of public resort" or
forcing him to leave his house or village. In such cases, the caste
motivation is a given.
* The second category covers grievous offences that are anyway
punishable under the Indian Penal Code (rape or murder, for instance).
It is not enough for the victim to be a Dalit and the culprit to be
non-Dalit to invoke the atrocity law. The prosecution would also have
to prove that the crime was motivated by caste prejudice.
The problem is that this is subjective. Hence, cases relating to the
second category of caste atrocities often result in acquittals under
the special law. There is no objective standard for determining the
hand of caste prejudice in such cases. Unsurprisingly, this offers
ample scope for judges to interpret the law in a manner that may
diverge from common sense.
In fact, the problem with the Khairlanji verdict is that the high
court remained unconvinced that caste hatred had, in any way,
contributed to a terrible crime — the four Dalits were chased and
beaten to death by a mob made up of locally dominant Kunbi Marathas.
As far as the court is concerned, the only motive for the mass murder
was the mob's quest for "revenge". It is true that two of the targeted
Dalits — mother and daughter — had dared to lodge a police complaint
against some of those caste Hindus following an assault on a Dalit
family friend.
But the assumption that the mob was driven by revenge alone and
displayed no caste prejudice is contradicted by the court's own
narrative of facts. Take its failure to notice that the vengeance
wreaked by the mob was far too disproportionate to the supposed cause
of their outrage: the registration of an allegedly false assault case
by the Dalit mother and daughter. The offence of assault carries a
maximum penalty of two years. Could mob frenzy be whipped up to the
extent of committing crimes punishable with death just to get even
with somebody who lodged such a petty case? Had the Bhotmange family
been upper caste, let alone the locally dominant Kunbi Maratha, would
the mob have dared behave this way, that too in broad daylight?
The revenge theory also seems thin given the manner in which the
daughter's body was found naked in a canal and the fact that the mob
killed the sons as well, one of whom was disabled, although they had
nothing to do with the allegedly trumped-up assault complaint.
The Khairlanji verdict is more questionable than other atrocity cases
in which judges have ruled that the crime had little to do with the
victim's low caste status. In 2006, in Bandu Tamboli vs State of
Maharashtra, the high court rightly ruled against the application of
the atrocity law as there was no reason to believe that the accused
would not have raped the victim had she not been a Dalit. "There was
no racial tinge to the offence," the high court said.
It is ironic that while the courts use caste and race interchangeably,
the government spares no effort at various international meets to
delink the two. In any event, Khairlanji is a watershed event. It is a
fit case for the Supreme Court to clarify that judges cannot defeat
the very purpose of having an atrocity law by overlooking clear
evidence of caste prejudice. Else, judges themselves might be seen as
unwittingly betraying a "racial tinge".
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