The ‘Untouchable’ Bill

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Fighting the system In the Khairlanji case, Dalit victim Bhaiyyalal Bhotmange’s pleas fell on deaf ears
Fighting the system In the Khairlanji case, Dalit victim Bhaiyyalal Bhotmange’s pleas fell on deaf ears. Photo: Cherian Thomas

A crime against Dalits happens every 18 minutes — three women raped every day, 13 murdered every week, 27 atrocities every day, six kidnapped every week and so on. This is the data compiled by the National Campaign on Dalit Human Rights, an NGO, which paints a grim picture of Indian society.

The data depicts a blatant violation of constitutional promises and international laws such as the Convention Against All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights.

It is in this context of growing caste violations that affect about one-fourth of the population that the fate of the SC and ST (Prevention of Atrocities) Amendment Bill is raising disturbing questions.

Introduced by Union Minister for Social Justice and Empowerment Thaawar Chand Gehlot on 14 July, the Bill has been consigned to a parliamentary standing committee and some of its stringent clauses run the risk of being watered down.

The Bill identifies that “despite stringent provisions… the Act has not been effective in preventing commission of offences, which is its main objective”. It further notes that “victims and witnesses confront hurdles at every stage of the legal process — from registration, investigation and chargesheeting, to the trial stage. The conviction rates under the Act remain low”. It also acknowledges issues such as the “high rates of acquittal and pendency and low rate of case disposals”.

The Bill has included newer forms of atrocities and made provisions for more accountability from public servants.

The Bill traces its genealogy to painstaking efforts by human rights groups led by the National Coalition for Strengthening of SC/ST PoA Act, academics and concerned MPs. Sources familiar with the background work reveal that the strong ‘casteist’ lobby within the Congress prevented the passage of the Bill, which was introduced by the UPA government in Parliament on 12 December 2013. The Bill was never taken up for discussion and finally a presidential ordinance came at the fag end of the UPA’s tenure.

The NDA government introduced the Bill after the ordinance lapsed, but it was referred to a parliamentary standing committee despite pressure from the Opposition to pass it immediately.

“The UPA government could have passed the Bill, but they played opportunistic politics,” says N Sukumar, human rights activist and assistant professor of political science at Delhi University. “But it is doubtful whether the Hindutva dispensation will work to enact a progressive legislation. The Sangh Parivar is cleverly trying to downplay the historical reality of caste. They are focussing on the campaign that we all are part of larger Hindutva. They are also trying to bring in new theories like it was the Mughals who introduced the caste system. The BJP’s strategy will be to play a double game. They will try to convince Dalits that we have tried our best to initiate the Bill. But, at the same time, they will align with all possible forces to dilute the amendments.”

VA Ramesh Nathan, general convener of the National Coalition for Strengthening of SC/ST PoA Act, adds, “If one uses common sense, the current PoA Act is stringent and misused. But the government statistics and everyday incidents of brutal and subtle violence against Dalits and Adivasis prove that the Act is simply not working. Perpetrators use ambiguities and loopholes in the Act to evade punishment. An insensitive judiciary and police contribute in their own way to work around the Act.”

Amendments that aim to include “new forms of offences to the existing punishable offences, addition of relevant IPC offences as punishable offences under the PoA Act, attempts to clearly define ‘willful negligence’ by public servants, establishment of Exclusive Special Courts and Exclusive Special Public Prosecutors, provisions that protect the rights of victims and witnesses and the expansion of the scope of presumption (to minimise loopholes in the applicability of the Act)” can bring positive changes, says Nathan.

The new offences identified by the Bill include offences related to dignity, atrocities against women, offences related to land and housing, offences related to franchise and offences related to untouchability in the public sphere. For example, the Bill identifies new forms of commonly found atrocities such as social and economic boycotts, garlanding with footwear, physical harm on the allegation of practising witchcraft, etc.

There are many documented cases of such atrocities cutting across all regions. But policemen refuse to register complaints arguing that these cases do not come under the purview of the PoA Act.

“Even if the FIRs are registered under the PoA Act, at the later stages when the charges are framed or the chargesheet is filed, sections of the Act are taken out on the ground that the offence committed are not covered as an offence of atrocity under the Act. As a result, the perpetrators are never convicted,” says the Bill.

Several academic studies have found that growing Dalit assertion is countered by dominant caste groups with the powerful tools of economic and social boycott, says GC Pal, Research Fellow, Indian Institute of Dalit Studies. When combined with existing violations such as labour market discrimination, social boycott can cause serious fissures in the livelihood and selfrespect of Dalits.

In their seminal study titled Justice Under Trial, legal researchers Jayashree Manghubhai and Rahul Singh have recorded a curious case of social boycott of a Dalit victim’s family in an atrocity case handled by a special court in Telangana. “For instance, no share autos operated by dominant castes are allowed to accept the family as passengers, forcing them to walk the 3 km up to the main road to catch public transport,” they say.

Another major thrust of the Bill on clearly defining the term “willful negligence” by public servants is aimed at making investigation agencies and other government departments concerned more sensitive and transparent. The negligence of the police was highlighted in the recent past when the Maharashtra Police infamously refused to register an FIR in the 2006 Khairlanji rape and murder case. The police did not listen to the complainant Bhaiyyalal Bhotmange and filed the FIR only after discovering the dead bodies of his wife and daughter.

The amendments that aim to establish Exclusive Special Courts and Exclusive Public Prosecutors are aimed at tackling the “delay in the disposal of cases in a timely manner”. Scientific studies such as Justice Under Trial have identified that there is a strong link between “prolonged trials” and “obstruction of justice”. “The prolonged period of trial negatively affects the ability of the victims and witnesses to remember accurately the incidents and their statements before the police,” says the study. “Pressure can be exerted on the victims and witnesses to recant their statements as to the atrocity.”

The prolonged legal battle is also leading to “forced compromises”. “As other studies have shown, the word ‘compromise’ is a misnomer in such cases where unequal power relations exist between the two parties in a case,” says the study. “These ‘agreements’ to end a prosecution are often forced or coerced, including through the payment of money to the economically poor victim. Pressure is put on the victims to enter into a compromise because they know they have to live in the same village as the accused and his/her caste community.”

Interestingly, there are dissenting voices among civil society activists about the basic philosophy of the Amendment Bill. “The new Bill has not defined untouchability,” says Supreme Court lawyer Nithin Meshram. “It has just included new offences. It has failed to provide a notional change among the people.”

Meshram recalls an incident in which a highly educated Dalit youth approached the father of his girlfriend (who belonged to an upper caste) for her hand in marriage. “The girl’s father told him that he would never marry his daughter to a Dalit or Muslim despite how good the boy is,” he says. “Isn’t that untouchability? Ethically, it is. But even according to the new amendments, it won’t be considered as untouchability in the strict legal sense.”

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