Nine people were killed on Monday after Dalits in several states held protests against a Supreme Court order, which diluted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The order, released on March 20, removed a provision for automatic arrests of those accused under the Act, and made it mandatory for the police to conduct preliminary inquiries within seven days of a complaint before filing a first information report. The judgement also stated that public servants can be arrested under this law only with the written permission of their public authority.
A bench of Justices UU Lalit and AK Goel also stated that the Atrocities Act – as the law is commonly known – was being used to blackmail innocent citizens and public servants, and that it should not be used to “perpetuate casteism”.
Smitha Nair spoke to Sukhadeo Thorat, economist and scholar of Dalit issues, about the history of laws protecting the rights of Dalits in India, whether the law was indeed being misused by Dalits, and why he thought members of the community turned out in such large numbers on the streets on April 2 in what was largely a leaderless protest against the dilution of the Act.
Edited excerpts:
Tell us about the history of legislation with regard to protecting the rights of Dalits, starting from the Constitution till the 1989 enactment of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and its amendment in 2015.
The Constitution banned the practice of untouchability, which was the legacy of Ambedkar, who was at the helm of Constitution-making. Once this provision was in the Constitution, it had to be converted into law. Therefore the first law – the Untouchability Offences Act – was enacted in 1955, when Ambedkar was alive. He helped in shaping it. The Act allows the untouchable or Dalit access to the public sphere, and if anybody obstructs this, they are subject to legal punishment. That is the scope of the Act. It covers the public sphere – temples, wells, roads, primary health centres and schools.
Later, it was discovered that when untouchables sought equal rights and protection under the Act, there was Opposition from the high castes in the rural areas. That opposition was violent – verbally and physically. That could not be covered under the Untouchability Offences Act. Some of these atrocities were such that it was very difficult to cover them under the general criminal act too. Therefore in the late eighties, the government thought to bring a Prevention of SC/ST Atrocities Act – to prevent these atrocities.
There was a rise of the educated lower middle class and of educated Dalits in rural areas, who would assert themselves more than their forefathers did. As a result of that assertion, there was a reaction that was fairly widespread in the country. It is at that time that the Union Ministry of Social Welfare set up the Elayaperumal Committee, which recommended the need for a second Act to provide a legal safeguard against the violent response by high castes. This committee also recommended a change in the Untouchability Offences Act – it was renamed the Protection of Civil Rights Act. They said untouchability involved the violation of civil rights.
From Marathas in Maharashtra to Vanniyars in Tamil Nadu, communities have alleged the Act is being misused. Is this a bogey?
I undertook a study in Maharashtra but the findings can very easily be applied to an all India situation. Now there are two questions here. One, can the Dalit afford to file false cases? Two, do they register false cases?
In Maharashtra, the government asked the Inspector General of Police to look into the allegation of whether there are false cases. He submitted a report that suggested there is no evidence of false cases. What they found is that at the preliminary stage, before filing the FIR [first information report], the police will see if there is enough evidence to file the case. They came to the conclusion that only 6% of the total cases are rejected at that stage, rest of the 94% cases are considered by the police based on the evidence to be filed. So this report completely rejected the charge that false cases are filed.
I examined the all India data as well as Maharashtra data – about 6% to 7% cases are rejected at the very beginning, and the rest are filed by the police. The police cannot file a case without being satisfied of sufficient evidence.
The larger question is theoretical: Can a Scheduled Caste person afford to file false cases? Ambedkar addressed this issue in 1947. He argued that in the village setting, the demographic and economic equation between the higher caste, OBC [Other Backward Classes], Marathas and others and the untouchable is such that by no stretch of the imagination you can think that the poor Dalit will file such cases.
In Maharashtra, 60% Scheduled Caste are wage labourers who are dependent on the higher castes for a job and survival. Secondly, they are in an absolute minority in villages, not more than 10% to 15%. Can you imagine [how] the minority pitched against the majority – a rather hostile majority at times – and completely dependent on the higher caste for survival will show courage to file a false case?
So it is against logic to say Dalits will file false cases. My answer also to the Supreme Court judges who have alleged that Dalits have misused the Act is that this is based on prejudice and not factually correct.
What does your study say about the attitude of those entrusted with enforcing the Act (the police which probes the cases) or indeed that of the judiciary that tries these cases?
There are many issues here. I will begin with the Standing Committee on Social Justice and Empowerment, which gives feedback on policy. In a report, the committee mentions “there is wilful negligence by the officials who investigate the cases of atrocities” and that wilful negligence is reflected in leaving several loopholes while filing the case .
The loopholes in procedure are then used by judges to acquit the person on procedural grounds, disregarding the content of the case. That is the crux of the failure of the Atrocities Act. It is the administration which is responsible for the extremely low conviction rates. In Maharashtra it is a 5%-6% conviction and a very high acquittal rate.
What I observed in Maharashtra was (this was based on three studies) 52 cases from Latur and one more district in Marathwada, and another report submitted to the Standing Committee of the Ministry of Social Justice and Empowerment, which came to visit Maharashtra for a discussion at the time of amendment to the Act in 2015. Briefly, I discovered that in addition to the Atrocities Act 1989, there are rules framed in 1995, which are comprehensive. For example, it says if the incident has happened, the police should immediately go to the spot and file the case within 24 hours. Also, while filing the case it should mention the caste background of the victim as well as the accused, provide medical support and rehabilitation. An officer not below the rank of DSP [deputy superintendent of police] should investigate, and the first information report should be read out to the victim. So there are rules laid down for the implementation of the Act.
I discovered while studying these cases that each of these provisions or rules is violated by the administration in connivance with the accused, and possibly even the public prosecutor. As a result, several loopholes are left, so these loopholes will be pointed out by the lawyer of the accused.
My findings show that 80% to 85% accused are acquitted by judges on procedural grounds. For example, in the documents, the caste background of the Scheduled Caste victim or the accused is not mentioned. You know a case can be filed under the Atrocities Act when the victim is a Scheduled Caste and the accused is a high caste. The police will deliberately leave that column blank. Now the judge will say, ‘You have not mentioned the caste of the victim or the accused, how can we consider this an atrocity? Acquitted!’ So these are the kinds of lapses that are being deliberately kept just to provide enough scope to the lawyers as well as the judge. That is why in Maharashtra the conviction rate is 6%.
This was the reason why the 2015 amendment to the Atrocities Act brought an additional provision that if an officer is found to be wilfully negligent, an internal enquiry will be set up against him. This Supreme Court judgement takes that away.
It is the low conviction rate that some are using to claim that false cases are being filed – not realising that this is because of the loopholes wilfully kept by officials to support the people of their social background.
Ambedkar had pointed out in one of his lectures in the early thirties that the law can help you check the behaviour of an individual, but when the community as a whole is involved in the atrocity and violation of civil rights – no judiciary, no government, no court can do anything. That is what precisely happened.
What are Dalits most angry about? What explains the large number of protestors on the streets on April 2 in what was largely a leaderless protest?
The government and the Supreme Court on earlier occasions thought that given the extremely weak and vulnerable position of the untouchables, normal procedure would not help, therefore the need for extraordinary provision whereby they can get justice. Here is a court which takes that away. You give eight days to the SSP [senior superintendent of police] to file the case – everything will have disappeared. My study for Maharashtra shows that the moment the incident happens, the pressure starts – threats, persuasion, all kinds of things. So I think the anger is because of that also, and obviously the anger is because of the allegation of misuse and words that the court has used – which I do not think any judges have used before – “exacting vengeance” and “blackmail”.
Of course, anti-Dalitism is coming up underneath. You have to see some of the videos on social media condemning reservation [in government jobs and higher education]. And then there are statements by prominent BJP leaders that the basis of reservation should not be caste it should be economic [status]. So all these kinds of things [are responsible]. Dalits see they are losing out on gains made and they see there is a certain animosity against them for reservation. So I think it is a much larger protest, expressing anguish and pain.