Why Do We Need a Specific Law to Safeguard Dalits Against Caste Violence?
A reading list to help understand why the provisions of the SC/ST (Prevention of Atrocities) Act should not be diluted.
In March this year, the Supreme Court (SC) rendered the SC/ST Prevention of Atrocities Act (1989), “toothless”. While ruling on Subhash Kashinath Mahajan v State of Maharashtra, the court suggested that the PoA Act is often “misused” by the Dalit community. Consequently, it recommended that prior enquiries be conducted before cases can be registered under this act, and also made a provision for anticipatory bail for the accused. In August, in what was largely narrativised as a pro-Dalit move before an election year, the BJP-led NDA government moved Parliament to reinstate the original provisions that were available in the act.
The PoA Act is the only legal recourse available to the Dalit community to fight against specifically caste-based violence. The SC’s ruling led to nationwide protests against the dilution of the act. This reading list attempts to examine why we still need a robust PoA Act, especially in the present political climate.
1) Caste discrimination is a very specific socio-cultural problem
Despite constitutional provisions to uphold the rights of Dalits in post-independent India, the systemic violence that has been perpetrated against them has continued well into the 21st century. Debashis Chakraborty, D Shyam Babu and Manashi Chakravorty studied district-level data in 2006 and found that both the state and society are complicit in the process of keeping Dalits marginalised. Their research concludes that a high “prevalence of atrocities” is a “unique factor”, different from other forms of disenfranchisement, that affects their social mobility.
One shortcoming of the country's approach towards welfare of dalits is that atrocities are mostly taken as a law and order problem, divorcing them from the larger strategy for social justice. Atrocities do represent a significant hindrance to socio- economic mobility of the community.
2) The police guard the door to justice
When victims of caste violence try to access justice, often the first stumbling block they encounter is institutional bias in the form of the police. The police need to record their first information reports, which they are often reluctant to do. The SCs ruling in 2018 sharpened the already prevalent institutional bias by skewing the law in favour of the accused.
The reason why the Court thinks that the PoA Act is misused is that there are a large number of allegedly false cases that are registered under the act. Sthabir Khora’s research suggests that this is true, but only because the police are likely to classify cases filed under the PoA Act as “closed cases” in their Final Report (FR). It is the FR that decides whether or not a case is worth sending to court at all. Compared to cases filed under other laws (such as 498A of the Indian Penal Code which prohibits cruelty at the hands of a husband or his relatives against a wife), cases filed under the PoA Act are more likely to be categorised as “false” by the police.
Two important indicators discussed in the academic as well as the popular discourse on justice are “incidence of crime” and “conviction rate”. However, both these discourses do not focus much on the Final Report (FR) which is truly the first-line of justice/ injustice delivery. It is almost a verdict by the police that the case does not deserve to go to the court. If oppression has indeed taken place, such a verdict by the police has serious implications for the delivery of justice. Not much public consternation is witnessed when a sizeable chunk of cases, sometimes amounting to 50% in the case of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth the SC/ST Act) and 498A of the Indian Penal Code (IPC) do not go to court. They result in the FR and are closed.
3) Having a law against caste violence does not perpetuate casteism
The March 2018 SC ruling said that “the PoA Act should not result in perpetuating casteism which can have an adverse impact on integration of the society”. Nitish Nawsagaray writes that such a statement ignores the fundamental social reality of India. The PoA Act is, in fact, a demand for justice against caste humiliation and was implemented to guard against caste atrocities like untouchability.
The PoA Act was implemented as a furtherance of the dictates of Articles 14, 17 and 21 of the Constitution. During the 19th and 20th centuries, social transformation was brought about by the sweep of law. Criminal law sought to curb deviance through deterrence. Thus, the fear of criminal law is used effectively to ensure change in social attitudes. Article 17 of the Constitution abolished untouchability and made its practice illegal. Parliament enacted the Untouchability (Offences) Act in 1955 to punish the practice of untouchability. Later on, this was amended to the Protection of Civil Rights Act, 1976 and then to the PoA Act, 1989.
4) The suggestion that the act is being misused is an atrocity in itself
Sthabir Khora, also writing in response to the court ruling, said that it is more likely that the act is being misused by the upper castes.
The popularly accepted notion is that the PoA Act is misused by members of SCs/STs against the upper castes. There is as yet formally no acknowledgement that it is also misused by the upper castes to settle scores by using members of the SCs/STs as proxy. When the 461 final reports of six districts were analysed, 57 final reports (12.36%) mentioned that the complainant was a pawn in upper-caste rivalry.
Considering the available data, Anand Teltumbde summarised the situation succinctly.
The Supreme Court’s judgment raising the bogey of misuse of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Act), 1989, is a grave atrocity against Dalits and Adivasis in itself. It seeks to effectively generalise one case to rewrite an entire law, transfer judicial functions to the police, create hurdles in the immediate arrest of perpetrators and their collaborators, and make the act toothless.
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