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Islam and Politics ( 30 Aug 2015, NewAgeIslam.Com)

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Children of a different law

By G. Sampath

August 30, 2015

A recent sting video shows the men acquitted in the Laxmanpur Bathe case boasting about the same massacre. Will the passing of the Prevention of Atrocities (Amendment) Bill finally change the way justice is delivered to Dalits?

On the night of December 1, 1997, in Laxmanpur Bathe, a village in Bihar’s Arwal district 90 km from Patna, 58 Dalits were slaughtered by a gang of dominant caste men that went by the name of Ranvir Sena. One of the worst instances of caste violence in independent India, the then President K.R. Narayanan called it a “national shame”.

For the next 12 years, this atrocity wound its way through the tortuous intestines of the Indian judicial system. Finally, on April 7, 2010, a Sessions Court sentenced 16 of the 46 accused to death, and 10 more to life imprisonment. Three years later, on October 9, 2013, the Patna High Court acquitted all the 26 who had been convicted, citing lack of evidence. Narayanan was no longer alive by then. So we don’t know what he might have said about the way our criminal justice system handled this national shame.

Earlier this week, the investigative news portal Cobrapost released a video. In it, the very members of the Ranvir Sena who had been acquitted by the Patna High Court are seen boasting about their murderous exploits, including how they executed the massacre in Laxmanpur Bathe. The emergence of this video has two implications.

First, it suggests that lack of evidence – though cited often by our courts — may not be the real reason why cases of caste atrocity almost never end in convictions, or if they do, don’t survive the appeals process. It is clear that evidence is available for those serious about finding it.

Second, the pattern of interminable delays in trial proceedings, followed by conviction by a lower court (though rarely under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989), followed by acquittal at the High Court, has become too glaring to be ignored any longer, especially in the light of the Cobrapost video, which is effectively an 80-minute commercial that advertises guaranteed impunity for caste atrocities in India.

One could easily cite several cases that fit the Laxmanpur Bathe trajectory. For instance, in the Bathani Tola massacre of 1996, 21 Scheduled Caste (SC) and Muslim farm labourers were killed by dominant caste landlords. The trial court convicted 23. The High Court set aside the convictions.

In the Nagari Bazaar massacre of 1998 in which 10 Dalits were killed, the trial court convicted 11. The High Court set aside the convictions. In the Miyapur massacre of 2000, 34 SC and Backward Class (BC) labourers were killed. Nine landlords were convicted by the lower court. All were acquitted by the High Court.

This trend goes back to the Kilvenmani massacre of 1968, in which 44 Dalits were killed by upper caste landlords. The lower court found eight of the 23 accused guilty. The Madras High Court acquitted everyone.

Legislative remedy

Clearly, from the perspective of Dalit victims, the Indian criminal justice system has failed to deliver. Yet the only recourse open to them seems to be the legal one.

India has seen several pieces of legislation enacted for the express purpose of deterring caste-based violence. We began by abolishing the primal atrocity of untouchability under Article 17 of the Constitution. Since it wouldn’t get abolished, however, we enacted the Untouchability (Offenses) Act, 1955. This was found to be not stringent enough, so it was amended and became the Protection of Civil Rights Act (PCR), 1955. The PCR Act was still not effective in protecting SCs from caste violence. So we made the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST POA Act).

It may be noted that all but one of the atrocities cited above took place after the 1989 POA Act was enacted. So this legislation too hasn’t been effective, as its conviction rate is also abysmal.

The solution? Another legislation: the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2015 (henceforth the Amendment Bill).

To deter caste atrocities

According to Ramesh Nathan of the National Campaign on Dalit Human Rights (NCDHR), the 1989 SC/ST POA Act did not have answers to several implementation-related problems.

Describing the experience of Dalit victims who sought redress through this law, Mr. Nathan says, “In most cases, the police would not file FIRs, or do so under the wrong section. The accused are not arrested on time. The investigations are not done on time. The charge sheets are not filed on time. Compensation to victims is not given on time.”

Apart from these, other problems included the frequent filing of counter-cases against Dalit victims, thereby forcing them into a “compromise” with the accused. According to D. Shyam Babu, senior fellow at the Centre for Policy Research, a common stratagem adopted by the police is to “turn every atrocity into a group clash”, and file cases against both Dalits and upper caste aggressors.” This would automatically ensure that the POA Act would not be applicable.

Mr. Babu adds that typically the police, tasked with maintaining law and order, would put the onus on the Dalit. “If a Dalit groom wanted to ride a horse or a bike, they would say to him, ‘Why do you want to provoke?’ Or ‘Why not take a different route?’ Given that Dalits are a minority in many rural communities, the police are not really going to risk a law and order situation just so that SCs can exercise their equal rights.”

It is to address these problems with the 1989 legislation that Dalit human rights organisations, in consultation with Adivasi rights groups, came up with the draft Amendment Bill, which they submitted to the government in 2010. The UPA-II, however, failed to pass it, and notified it as an ordinance in March 2014.

Earlier this month, the NDA government finally passed the SC/ST POA Amendment Bill, 2015 in the Lok Sabha. The Bill’s provisions are virtually the same as the ordinance passed by UPA-II. It needs to be passed by the Rajya Sabha and notified by the government in order to become law.

Will it make a difference?

The big question is: will this latest legislative salvo against caste atrocities fare any better than its predecessors? Or will it once again, like the 1989 Act, be subverted by a criminal justice system that is itself steeped in caste prejudice?

Dalit activists are cautiously optimistic. Mr. Nathan explains that their hopes stem specifically from four aspects of the newly amended law.

First, the 1989 POA Act had merely provided for re-designating existing courts as special courts for prosecution of crimes under the POA Act. This meant that these “special courts” were also burdened with non-atrocity cases, as a result of which atrocity cases began to pile up, defeating the very purpose of a “special court”.

The Amendment Bill, however, mandates the setting up of “exclusive special courts” that will only try offences under the POA Act. Eliminating the bottleneck created by the burden of non-atrocity cases is expected to ensure speedier completion of trials.

Second, the Amendment Bill extends the roster of punishable offences to include new ones hitherto not covered, such as garlanding with chappals, defiling objects sacred to SC/STs, forced tonsuring of head, etc. The number of casteist offences that did not have a section under which prosecution could be initiated has thus been minimised.

Third, to address the problem of endless delays, the Amendment mandates that trials must be completed within two months, “as far as possible”.

Finally, the Bill defines the content of “wilful negligence” by public servants, which had been left vague in the 1989 legislation. It specifies, for instance, that the duties whose negligence would attract penal provisions under the POA Act include not registering a FIR under the Act, not reading out to the victims the information given orally and recorded in writing, not registering a FIR under the appropriate sections of the Act, and so on.

The overall expectation from the Amendment Bill is that it will address the two major challenges for SC/STs seeking justice: endless delays, and the police either refusing to co-operate or colluding with the non-SC accused.

The law and its limitations

While the activists who have campaigned for this legislation remain hopeful that it will empower them in the battle to protect SC/STs from atrocities, they are also conscious of its limitations, both social and juridical.

At the social level, the Bill follows the definition of SCs as laid down in the Constitution. This means that only Hindu, Sikh and Buddhist Dalits are recognised as SCs under the law. Thus, Dalit Christians and Dalit Muslims will not benefit from it. This is a serious flaw as Dalits from other faiths also face caste violence. For instance, the victims of the infamous Karamchedu massacre of 1985 included Dalit Christians.

Says Mr. Nathan, “We wanted to expand the law to include Muslims and Christians. But the feedback we received from the government was that since this needs a constitutional amendment, it could take a long time. So even this proposed amendment would get delayed. So we decided to take one step at a time.”

Second, the Bill cannot help migrant Dalits either, since the legal definitions of SCs are geographically grounded, linking specific castes to specific States and districts.

These shortcomings apart, legal experts are of the view that even juridically, this legislation may not yield a dramatic change in legal outcomes — at least not in the short term. Saurav Datta, a criminal justice reforms activist, elaborates. “What has been the main reason why convictions don’t happen in cases of caste atrocities? It is because our courts have steadfastly refused to see caste prejudice or caste hatred as a key component of what we call the mens rea or criminal intention. Take the 2006 Khairlanji massacre, for example. The courts refused to accept that the brutalities inflicted were because of caste. There were convictions, but they were for murder, not for any offence under the POA Act.”

The law makes a distinction between a crime and an atrocity: a crime is any act punishable by law; but an atrocity denotes “the quality of being shockingly cruel and inhumane”. It also implies “any offence under the IPC committed against SCs by non-SC persons”. Caste considerations as a motive are “not necessary to make such an offence an atrocity.”

Yet, as Mr. Datta points out, the Indian judiciary, including the Supreme Court, has repeatedly chosen to treat atrocities rooted in caste like any ‘normal’ crime under the IPC. “If an SC woman is raped by a non-SC, the courts might give a conviction for rape. But that still doesn’t recognise the caste origin of the atrocity — in which case, it doesn’t really help the Dalit cause.”

Everyone agrees that the best thing about this Bill is that it will make it easier for Dalits to file cases. “But when prosecution happens, will the cases stand in court? Or will we see cases simply piling up?” asks Mr. Datta. “Only when this law yields a precedent or two of successful prosecutions in the higher courts will the Dalits finally have something concrete. For this to happen, the judiciary must first make a conscious effort to rid itself of caste prejudice.”

Professor G. Mohan Gopal, director, Rajiv Gandhi Institute of Contemporary Studies, presents a different view. “It won’t be easy to get the new Bill implemented in its spirit,” he admits. “But it is nevertheless an important tool from the perspective of Dalit rights. It has given the Dalits a useful lever to mobilise around, and deepen their struggle. As their movement gains in strength, the law’s implementation will also gradually improve.”

All said and done, laws alone do not deter atrocities; convictions do. The SC/ST POA Amendment Bill, 2015 is a step in the right direction. But Dalit rights activists and civil society have their task cut out to make the judiciary and the state responsive to this legislation. A lot will depend on their success in sensitising the public to the insidious nature and wide prevalence of caste prejudice and privilege.