In a shocking judgment the Supreme Court of India has eased the bars imposed in a special law [called The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act 1989 or the Atrocities Act)] that deals with the cases of persons accused of offenses against the members of low caste communities. A two-member Supreme Court bench on 20 March 2018 held that: “Liberty can’t be taken away without a preliminary inquiry; that pre-arrest bail is admissible; if the complaint is against public servants, prior sanction from appointing authority is necessary; and, in other cases sanction of an officer at the level of SP would be required”.
The Court has essentially declared that absence of safeguards against the breach of fundamental right of liberty brought the law in conflict with Article-21 of the Constitution that stipulates: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The directions issued by the Court would surely make filing of complaints and registration of cases under the law difficult and cause delays in police action. This is how the community has felt alongside the civil rights organisations.
The judgment has unleashed a wave of violent protests in the key states of Uttar Pradesh, Bihar, Madhya Pradesh, Rajasthan, Punjab and Bengal. Besides numerous cases of rioting and burning, 13 people have so far been killed. Civil rights and Dalit groups have condemned the judgment and termed it as dilution of protection that was secured after long struggle by the Dalit community.
Before we comment on the merits of the judgment, it is important to recognise the precarious of Dalit community in Indian society and the circumstances they face in their ordinary lives. We would also reflect briefly on the history of political struggle of Dalit community and where do they stand in their endeavours to gain a fair share in the Republic of India.
The Indian society is perennially afflicted by social divisions in the form of castes variously sanctioned in the name of religion or economic considerations. The lowest rung of the caste ladder is occupied by scheduled castes, called Dalit (divided, broken, separated) as they are excluded from the four noble (Brahminic) groups of Hindus, and outcast as “untouchables”. The Indian Constitution (Article-17) has prohibited untouchability. However, an ethos deeply rooted in social psychology cannot be erased through a constitutional provision, unless of course the society rid itself of the prejudices based on historical myths. The Constitution introduced positive measures to improve the social standing of scheduled castes and scheduled tribes together with other backward classes. Quotas were reserved for them in government jobs as well as in parliament and legislative assemblies.
The Atrocities Act has to be viewed in the context of exceptional circumstances surrounding the Dalit community. The fact that such an act was conceived despite prohibition of untouchability, and that too after more than four decades of Constitution, means that Article-17 was woefully insufficient to break the societal barriers for acceptance of Dalits as equal citizens. The discrimination meted to these people is not limited to social unacceptance but rather, most often than not, their lives and properties are not treated worthy of protection under law.
A group of opposition MPs led by Congress have sent a memo to the president of India, giving chilling details of atrocities committed against Dalits and expressing grave apprehensions for adverse effects flowing from the judgment of the Supreme Court that has diluted the protection afforded under the Act. The memo states: “As per the latest records of National Crime Records Bureau (NCRB), a crime is committed against Dalits every 15 minutes in India and six Dalit women are raped every day. Rape cases against Dalit women have doubled from 2007 to 2017 and 66pc hike in atrocities against Dalits have been reported in the last 10 years. This situation has only worsened in the last 3-4 years under the regime of present government at the center”.
The fundamental principle that should guide consideration of matters relating to Dalit community is their plight as human beings. The Constitution has afforded them a special status to ameliorate their lowly existence in the society. The Atrocities Act was made in recognition of the fact that despite constitutional guarantees, the state of Dalits remains precarious. The law, on the one hand, provides for speedy redressal and, on the other, aims to deter perpetration of atrocities. The MPs’ memo also argues that the judges have relied mostly on anecdotal evidence regarding abuse of the law while ignoring national statistics that speak of rising tide of atrocities against the community. The conviction rates against atrocities are abysmally low: Andhra Pradesh and Himachal Pradesh 3.2pc; Odisha 3.3pc, Telangana 6.5pc and Tamil Nadu 7.6pc. In 2016, 11024 cases against Dalits resulted in acquittal, 495 cases were withdrawn and 4119 cases resulted in conviction. The low conviction rate is not a basis to conclude abuse, but an indication of poor law enforcement since the atrocities haveoccurred and LEAs have failed to nab the right culprit.
The memo cites some gross instances of how Dalit people are treated by members of power communities: On 3-5-2015, three Dalits were crushed through a tractor on a land disputes by Jats in Rajasthan; On 8-10-2015, a Dalit family including women was stripped naked on the road by the Police Officials in Greater Noida area because they were insisting on registration of FIR for their bike robbery; On 6-5-2017, a Dalit groom was beaten up because he dared to drove a decorated car through a village in Chhatarpur, Madhya Pradesh; and, on 26-5-2017, in Khushinagar, UP, local officials distributed soap and shampoo to Dalits to clean-up before the visit of CM, Adityanath, who otherwise preaches inclusive Hinduism.
The above instances illustrate the nature of acts, which are not crimes but atrocities. An atrocity has the characteristic of being cruel, wicked, violent and shocking. The perpetrators simply don’t accept Dalits as human beings and are thus persuaded to do to them what one may do to animals. The special law, as its title suggests, is primarily designed to prevent occurrences of atrocities and, therefore, defines specific offenses for as atrocities. For comprehensiveness, it includes offenses under Indian Penal Code also, but the real purpose is to define atrocious offenses.
The Court has not dilated on the circumstances that warranted the special law, which, if they were to judge it on the touchstone of equality, could be declared discriminatory. The unceasing outrage of the Dalit community is a testimony to the real fears aroused by the directions of the Supreme Court, which could well induce fresh violence against hapless low castes communities.
In a historical context, Dalit population (now 17-18pc (2011 Census), always had an inspiration to form themselves into a political force. In 1930s, toward the close of British rule, they aspired to be have a separate electorate block just like Muslims. However, Gandhi succeeded in persuading Ambedkar not to make such a demand and work within the framework of a liberal constitution which would address all Dalit concerns. He eventually made Ambedkar chairman of the drafting committee of Indian constitution, even though Congress did everything possible to prevent his entry in the constituent assembly. It was Muslim League who made his entry possible from Bengal. He was greatly disillusioned before he resigned in 1951. In his resignation letter he wrote: “The provisions made in the Constitution for safeguarding the position of the Scheduled Castes were not to my satisfaction. However, I accepted them for what they were worth hoping that the government will show some determination to make them effective.”
The civil rights groups also felt outraged by the support Union Government’s council provided to the accused by conceding the right of pre-arrest bail. They saw in this a double-faced administration which adopts a public posture for supporting Dalit causes but has deeper vested interests with those perpetrating atrocities against Dalits. A review petition from the Union was admitted by the Supreme Court without holding in abeyance its directions in the case.