By Martin Macwan*
To protect innocent citizens against false criminal cases is a noble principle of any caste on earth and it is not a new principle that India has discovered. However, the element of ‘innocence’ is a subjective perception in a society where the origin, preservation and protection of the caste system manifested through one’s social status as a ‘pure’ or ‘impure, and ‘high’ or ‘low’ caste, leading to the chain behaviour that multiple forms of untouchability are a creation of God. The Indian law has criminalized discriminatory behaviour under the influence of caste in public sphere only, but has refrained from upholding caste as anti-national, immoral and irreligious, even when it has failed miserably to abolish untouchability and practices such as manual scavenging after seven decades of its independence.
The recent and controversial guidelines issued by the judges of the Supreme Court in relation to the Prevention of Atrocities Act (PAA) are not free from caste prejudices. There is ample place in our democratic life to check caste prejudices of civil servants, political leaders and religious leaders, but not of judiciary.
In 1994, I came across a case in Dhandhuka town of Gujarat, where the police brutally beat up a Dalit youth for purchasing a stolen bicycle for Rs 200 by confining him in a police lockup for more than 36 hours. The injured man was unable even to stand on his feet and hence the police presented his younger brother before the magistrate as the person they had arrested.
The arrested man was later rushed to the government hospital, where the doctor registered the case history and informed the police. The mention of the police frightened the man and he refused to be treated. That night the police made a story that he hanged himself in his own house, whereas he was unable to even stand on his own feet. The case was argued in the Gujarat High Court. In my presence, when the state prosecutor defended the police action, deeply perturbed by the photographs of the injured Dalit, the judge asked the prosecutor, ‘Had there been a policeman in the place of the victim, what would you say?’ The prosecutor replied without hesitation, ‘My Lord, the law differs from person to person’. Next I heard about the prosecutor was, instead of being laid off, he was promoted as the judge serving the High Court of Bombay.
Later, the doctor who had noted the injuries on the body of the victim turned hostile, saying, his writing was a ‘slip of the pen’. He was a Dalit. The police was acquitted. Yes, the law was misused; not by the victim but by the state prosecutor, the police and the doctor. The law protected all of them but could not protect the victim.
I was often invited to lecture the judges at the National Judicial Academy, Bhopal. At one such lecture on PAA, a senior judge intervened: If we walk on the path of the Vedas and Puranas, the country does not require a law, he said. A sessions judge, duly promoted to the post, told me that his senior judge had advised him: Do not convict many under PAA and do not dispose of cases speedily.
It is a common scene in the trial room in anti-atrocity cases where the judge suggests an amicable settlement before the trial begins. My lawyer friends have heard judges using derogatory caste words for Dalits saying, ‘Today I have to hear the cases of the ____”.
Hence the perception on the part of Dalits and Adivasis, one fourth of the population of India, that the observations of the Supreme Court judges are not ‘supreme’ has a valid point to consider.
The need for an anti-untouchability law was discussed, and it is recorded as part of the Poona Pact (1932), which promised that if such a law could not be enacted immediately it would be the first law in Independent India. However, the law did not take place until 1955 when India enacted the Untouchability Offences Act. With the continuing and increasing crimes against Dalits, India enacted Civil Rights Protection Act, 1976, which popularly came to be known Prevention of Atrocities Act. To give more teeth to the Act, all political parties contributed to the newly amended anti-atrocities Act, 2016. The law was not amended overnight. The process took more than four years and the draft was screened by the Standing Committee of Parliament and even the Law Commission. I am sure the judges of the Supreme Court passing recent guidelines were aware about these developments.
I have read the order of the Supreme Court, and my protest, after reading the same, is summarized here:
- The Supreme Court was dealing with a case where the falseness of the case has not been concluded by the trial court and the detailed observations of the Amicus Curiae are mechanical, one-sided, denying the victim the right to defend.
- The Supreme Court believed in each and every word of the amicus curiae.
- The amicus curiae notes that the victim filed his complaint after a gap of five years, but overlooks the fact that the investigating officer had sought sanction of the appointed authority to prosecute a public servant after five years since the FIR was filed.
- The judges believe that a single police officer of the rank of DSP in a district has the time and capacity to deal with every single case of atrocity in a week’s time, or even earlier, which never has been possible where the investigation had been handled by constables.
- The anti-atrocities Act necessitates a DySP to investigate atrocity cases to ensure that there is serious investigation, but Supreme Court guidelines dictate the investigation by DSP with the assumption that the police officer lower than the concerned rank would not be able to protect innocent citizens against the abuse of the law, the PAA to be specific.
- The judges expect the DSP to be mechanical, as the order says that the violation of direction (III) and (IV) will be actionable by way of disciplinary action as well as contempt. How many police officers in the rank of DSP and SSP would risk the slightest possibility of contempt of the court?
- The Supreme Court order has not included members of the Scheduled Castes and Scheduled Tribes in the category of ‘innocent citizens’.
- The Supreme Court has referred to five judgements of various High Courts which have made observations about the misuse of the anti-atrocities Act to strengthen its own order. Three of these judgements are from the High Court of Gujarat. Only 2.33% of India’s Scheduled Caste (SC) population lives in Gujarat, and the population of Scheduled Tribes (ST) is 8.5%. Caste-based discrimination cases are more in relation to Dalits than Adivasis. Gujarat being quoted maximum, High Court observations for misuse of the Act seems to have become a model for misuse of the anti-atrocities Act. What about the 97% of SC and 91.5% of ST population which lives in the rest of India? In any case, Gujarat does not fall in the list first five states where maximum atrocities are recorded.
The Supreme Court order has overlooked the fact that every crime committed against SC and ST in India is not registered as crime. Navsarjan’s own study published by the Centre for Social Studies, Surat (1994), concludes that the police make the victims believe that their complaint has been registered, whereas they actually note details only on a piece of paper. Such applications were found to be 150% more than the actual crimes recorded in the form of FIR. Is this not the misuse of the Act by the state? Is there a word from the learned judges on such an issue to protect the citizens of India?
The argument of the Supreme Court judges post their order, that they have not diluted PAA, has been an eyewash as they have weakened the very procedure by delaying the registration of the crime. It is assumed that everyone in India has enough literacy to understand the complexities of legal mechanisms.
The data relied upon by the amicus curiae and the honorable judges are flawed, as the same lack authenticity.
At the end, the unrest and mass scale protest taking away lives of 10 people (innocent?) could have been averted had the Union Government made its position clear on the Supreme Court order on day one instead of waiting for the unrest to build over 12 days. The Supreme Court order can be read to understand that the arguments presented by the additional solicitor general on behalf on the Union of India are hardly able to help judges to understand the fact of the matter, and a different view against written arguments, lengthy, dominant and one-sided, by the amicus curiae.
I have my own reservations to certain aspects caste-based reservations. I have worked for 38 years addressing the cause of untouchability and caste discrimination. I redefined Dalits as ‘all those who believe and practice equality’. I am aware and have written extensively that Dalits too have caste hierarchy within and they too practice untouchability. Navsarjan was the first organization perhaps to do a comprehensive study on prevalence of untouchability as practices between Dalits and others and within the Dalits on the basis of sub-caste.
I have had the personal experiences of being ex-communicated by other sections of Dalits for having eaten in the home of a Valmiki, most of whom are engaged in manual scavenging. Often, I have been accused of being a non-Dalit. But I have experienced untouchability as a child working in farms and have closely seen caste realities living in villages for many years. And yet, I firmly believe that one cannot throw away baby with the dirty bath water.
Gandhi had told his inmates after bitter happenings of the Poona Pact to the effect that even if Dalits were to smash the heads of caste Hindus they should not complain for the volume of injustice for centuries that have been heaped on them.
The root cause of the problem is prevalence and pervasiveness of caste system and the arms of law are too weak to annihilate it. If there is a demand to introduce caste based reservations in the judiciary at all levels, it would be logical and rational.
*Founder, Navsarjan Trust, Ahmedabad