‘The judiciary is usually unwilling to accept the caste argument’

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Every day three Dalit women are raped, two Dalits are murdered and 11 are beaten up. Colin Gonsalves, Senior Advocate in the Supreme Court and founder director of Human Rights Law Network tells Shazia Nigar why this happens despite the Scheduled Caste/Scheduled Tribe Prevention of Atrocities Act and how it can be redressed through an Amendment.

Why is there a need to amend the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act?
Although the law is well drafted, passage of time has shown a lacunae in this Act. Social and economic boycotts are not mentioned in the Act. So there is no provision against discrimination of Dalit children in schools, where they are made to sit at the back of the class; against throwing food on their plates from a distance; practicing the two tumbler system; not allowing Dalits to drink from the same well; preventing Dalits from bathing in the same pond; and forbidding temple entry. These are a range of untouchability practices that are widely prevalent and have no mention in the present Act.

Why has there been poor implementation of this Act?
Poor implementation is linked to the fact that the implementing authorities at all levels are the dominant caste. The policeman is invariably of the dominant caste. A Dalit handling a case of caste atrocity is an extreme rarity. The police also urge the victims and accused to settle or withdraw the case. 99% of the cases are withdrawn.

If you do come to court then you have the public prosecutor from the dominant caste. The higher judiciary is zealously opposed to the reservation for Dalits in the High Court and Supreme Court. These caste attitudes carry over to the highest level of the judiciary.

For example there is a statue of Manu in the Rajasthan High Court. There is a case there asking for the removal of the statue because its insulting to Dalits. The High Court has not heard the petition for ten years. The Rajasthan High Court has not had a Dalit judge ever since its inception.

What is the alternative to ensure proper implementation of this Act?
The Amendments that are being suggested will go some way for bringing about implementation. Issues of land, unemployment, violence, discrimination and sexual abuse. On all these grounds the atrocities are becoming worse. Studies show that there is 1% conviction rate. This is not just a failure of the law but also of the whole constitutional system.

How is it that in cases of rape against a SC/ST woman, unless intent based on caste is established, it is not treated as a violation of SC/ST PoA Act?
In most cases intent is established, but judges are very unwilling to look at rape on account of caste. This is again a caste bias. In all these cases they will address the woman by her caste name. There is always a background to the rape case. Before she was raped her husband might have demanded the minimum wage or they might have been a dispute over land.These are caste disputes. This background shows that the perpetrators intended to rape her not because she was any woman but because she was a woman from the Dalit community. The judiciary is usually unwilling to accept this argument.

Section 4 of the Act refers to Negligence. How is it that not a single case has been registered under this section?
When the implementation of the Act is left to the dominant caste what can you expect?

The present Act excludes Muslim and Christian Dalits from the ambit of SC/ST PoA. What is being done about it?
The proposed amendment provides relief for victims suffering from caste-crimes despite conversion. The government is not agreeable to the clause because they think it will spoil the reservation system. But this has nothing to do with reservation. It is simply saying that we recognise that a Dalit remains a Dalit from the point of view of discrimination and violence. So, despite conversion, if a Muslim or a Christian has to face violence because they were originally Dalits, the Act should be applicable in such a case.

What are the governments view on the amendment of this Act?
The Government is overall quite positive and they must be applauded if they bring about these amendments. However, there are some issues on which the Government is not in agreement, such as including converts into the ambit of the SC/ST PoA Act.

Legal recourse is one way of dealing with the issue of untouchability. What other mechanisms should be put in place to eradicate the practice?
The law is going to be the first step. The practice of untouchability or atrocities are not going to end just because the law is amended. Neverthless, it is an important step. We should not undermine the legal changes but real change will only emerge out of social upheaval.

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