http://www.tehelka.com/story_main40.asp? filename=Ws181008amended_mindset.asp
WEB SPECIAL Needed: An Amended Mindset A look at the proposed amendments in the SC & ST ( Prevention of Atrocities) Act 1989 SUBHASH GATADE ..In discussing the demands of social justice today, the priority of critical reasoning cannot but be central. But how do we analyse these demands? In probing the idea of social justice, it is important, I would argue, to distinguish between an arrangement-focused view of justice, and a realisation-focused understanding of justice. Sometimes justice is conceptualised in terms of certain organisational arrangements — some institutions, some regulations, some behavioural rules — the active presence of which indicates that justice is being done. The question to ask here is whether the demands of justice must be only about getting the institutions and rules right? - Excerpted from Amartya Sen's Hiren Mukherjee lecture in the Lok Sabha, organised by the Speaker, 12 th August 2008 The recent move by the Ministry of Social Justice to go for important amendments in the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (POA) 1989 supposedly to simplify the process of hearings and strengthen investigation mechanisms has largely gone unnoticed. According to reports appearing in a section of the media the ministry is contemplating amendments in section 14 of the act which would facilitate establishment of special courts for speedy trials in case of atrocities against scheduled castes and scheduled tribes. It is also being proposed that, in case of serious offences like murder and rapes against these marginalised sections, a detailed report should be sent to the Centre and the National Commission on SCs and STs within four days of filing of First Information Reports. Although the contours of the proposed amendments are not available it is expected that the special courts would be authorised to admit cases under these acts directly. As of now the special courts cannot directly entertain the cases under these acts without following committal proceedings which could cause further delays in trials. Close observers of the dalit-tribal human rights situation in the country would comment that the proposed amendments on behalf of the government were long overdue. In an inter-state council meet called to deliberate on the specific issue of dalit rage in the aftermath of Khairlanji killings the Prime Minister himself had admitted that continuing of atrocities against weaker sections is a 'national disgrace in a civilised society'. (The Hindu 10 December 2006) He also lamented the fact that 'implementation of SC and ST (Prevention of Atrocities) Act has not been effective' and 'cases continue to be registered under weaker sections of IPC'. Union home minister Shivraj Patil, in his address in the meet, had also mentioned 'tightening the police machinery as it is found to be wanting in reining in on the perpetrators of dalit atrocities.' In a Convention organised under the aegis of her ministry, the Social Justice Minister Meira Kumar had herself pointed out that " the conviction rate in cases registered under the Protection of Civil Rights Act is a mere 3.75 percent. Besides, cases pertaining to 75 to 77 percent cases of crimes against Dalits are pending despite the already-in-place special and designated courts." (January 12, 2005, The Telegraph) The Union home minister Shivraj Patil, who was also present at the Convention, had also "acknowledged that the system was not delivering justice and existing laws safeguarding the rights of backward classes may have to be changed or tightened." While the proposals being contemplated are welcome, the point worth deliberating is whether the main problem in curbing atrocities against dalits and tribals is the lacunae in laws or it is in fact something else. The necessity for enactment of this act had arisen because, under prevailing conditions, the Protection of Civil Rights Act (1955) and normal provisions of the Indian Penal Code were found to be inadequate to provide safeguards. This is important because when the SC and ST (POA) Act enacted in 1989, it had proved to be a pioneer in many ways. It provided for not only appointment of special courts, punishment for neglect of duties to officials, forfeiture of property of the perpetrators, confiscation of arms from the dominant castes in the area, declaration of a particular area atrocity, but even asked for distribution of arms to the downtrodden. But it is disturbing to note that all the radical provisions supposedly formulated to ensure justice to the SCs and STs (to quote How Acquittals Occur Under the POA Act? Acquittal due to investigation by a lower officer: The atrocity rules of the 1995 make it mandatory that investigations of an offence should be carried by either by a DySP or an officer above his rank, who is supposed to send his report directly to the state DGP. In 95 per cent of the cases it is observed that the accused are acquitted merely on the ground that the investigation of the offence was done by an officer below the rank of DySP Acquittal due to non-inclusion of caste certificate by the police: The Act makes it clear that the caste certificate of the complainant issued by a competent authority be annexed to the complaint and produced by the police before the court. There have been several judgements when the rape accused was allowed to go scot free merely because the investigating officer did not annex the caste certificate of the complainant. Negligence by public prosecutors: The appointment of Special Public Prosecutors (SPP) is mandatory under the Act for trials to begin but the hostile role played by such SPPs to prosecute cases destroys the case. The Council of Social Justice has studied several judgements in which the courts have passed severe strictures against deliberate attempts by the SPPs to avoid implementing the special provisions under the Act. Courtesy: Communalism Combat, March 2005 Justice V.K. Krishna Iyer) 'proved to be impotent and ineffectual in practice.' In a Forward to a book ''Dalit Utpidan aur Vidhik Upchar", by P.L.Mimroth, Nov 2000, Delhi, he further adds that the aim behind these attempts was to have a 'more effective, comprehensive and punitive provisions of law'. However 'the ruling classes saw to it that, at the functional level, the legislations were paper tigers'. And Justice Krishna Iyer is not the only person who had thinks on these lines. There have been innumerable reports detailing how the local police in connivance with the perpetrators themselves, sabotages implementation of laws basically meant to protect the dalits and the tribals. It is noticed that instead of filing cases under the POA act, it prefers filing cases under normal provisions of Indian Penal Code, which facilitates release of the accused on bail easily. It also facilitates filing of 'counter cases' against the victims, so that a compromise could be reached. The Third Report of the NPC (New Delhi :GOI, 1980 ) had rightly underlined how " false criminal cases are sometimes engineered merely for the sake of making arrests to humiliate and embarrass enemies of the complainant, in league with the police for corrupt reasons." A related phenomenon is the way in which the powers that be take steps to deter enlightened people to fight for constitutionally granted rights of the dalits and the tribals. Human Rights Watch Report (Vol 4, no. 15, June 1992) shares details of how Criminalisation of Social Activism in India takes place. In its much acclaimed report 'Broken People - Caste Violence against India's "Untouchables" (1999) Human Rights Watch repeats how 'State agents have acted directly and forcefully against those attempting to claim their rights. Dalit activists throughout the country are charged with being "terrorists", "threats to national security" and "habitual offenders". The 'Report on Prevention of Atrocities against Scheduled Castes' (NHRC, 2004, Delhi) similarly underlined the way the 'state has failed in this respect' on 'several fronts' while ensuring justice to these sections. These include 'failure to effectively implement the laws relating to atrocities against SCs and STs which is 'reflected both in respect of preventing violence from taking place' as well as in the 'inability to punish perpetrators of violence after the crime is committed'; 'failure to act against its own agencies involved in the commission of violence and ' failure to strengthen the watchdog institutions' . 'The failure of the state vis-à-vis mobilisation of caste Hindus in favour of social democracy embedded in the constitution and various laws and state policies' is palpable. This has, in turn, 'created ambivalence in its intentions and contradictions in its actions'. The Sixth Report of the National Commission for SCs and STs (1999-2000 and 2000-2001) had expressed its deep sense of dissatisfaction over the way all these measures are implemented. While commenting that "the number of cases registered under Prevention of Civil Rights Act and SC and ST (Prevention of Atrocities) Act has been showing a downward trend" indicating a healthy development, "it exposes the way this reduction in the number of cases has been arrived at . " But from its reviews with various state governments the commission is of the view that a large number of cases go unregistered, mainly because of the reluctance on part of the police officers to register the cases and also because of lack of awareness among the members of these communities about the provisions of these acts," reads the preface of the report. A detailed and systematic study of 400 judgements under the POA act, done by Vajibhai Patel, Secretary of Council for Social Justice (CSJ), is an eye-opener. (Communalism Combat, March 2005). It tells us that the utterly negligent police investigation at both the higher and lower levels coupled with a distinctly hostile role played by the public prosecutors is the main reason for the cases being deemed unsuitable under the POA. It is worth noting that he has meticulously documented the judgements delivered under this Act since April 1, 1995 in the Special Courts set up in 16 districts of Gujarat. The study also blasts the common perception that the inefficacy of this law is due to false complaints being lodged or compromises between the parties. It says it is the complicit State that has rendered the Act toothless. The CSJ study rightly notes that 'an utter lack of commitment to this legislation and lack of political will by state governments to prosecute the atrocities committed under this Act have rendered this legislation meaningless.' It is possible that all these details where the State comes out in rather unflattering terms could be brushed aside as a story repeated ad nauseam. All the talk of dalit atrocities could be presented as another extension of the way in which a third world State unfolds itself. But the key point worth emphasising is that caste atrocities much like gender oppression or racial atrocities have a specificity which transcends the binary existence of 'state as perpetrator' and 'people as victims'. In fact they implicate the partisan role played by the people themselves. The 'Report on Prevention of Atrocities against SCs (2004) ' prepared by NHRC presents details of the way in which the civil society presents itself. Civil society, it says, becomes a distinct beneficiary of caste-based order and it helps perpetuate the existing unequal social reactions frustrating attempts to democratise the society. Through the customary arrangements, the dominant classes are assured of social control over people, who will continue to abide by their commands, without any protest. Of course the uncivil nature of the civil society presents before us a unique challenge where the need then becomes to rise above a mere discourse on civil and constitutional rights and address the failure of the largest democracy of the world to go beyond mere form. We have to appreciate that it concerns the greater hiatus that exists between constitutional principles and corresponding ethical ones and practice. It was a manifestation of this real hiatus that when, Bhanwari, a Saathin from Women's Development Programme in Rajasthan was raped by the villagers, the trial judge acquitted the accused on the reasoning that 'rape is usual' and 'upper-caste man could not have defiled himself by raping a lower-caste woman.' Posted on Oct 10, 2008 ------------------------------------ ---- INFORMATION OVERLOAD? Get all ZESTCaste mails sent out in a span of 24 hours in a single mail. Subscribe to the daily digest version by sending a blank mail to [EMAIL PROTECTED], OR, if you have a Yahoo! Id, change your settings at http://groups.yahoo.com/group/ZESTMedia/join/ PARTICIPATE:- On this list you can share caste news, discuss caste issues and network with like-minded anti-caste people from across India and the world. Just write to [email protected] TELL FRIENDS TO SIGN UP:- If you got this mail as a forward, subscribe to ZESTCaste by sending a blank mail to [EMAIL PROTECTED] OR, if you have a Yahoo! ID, by visiting http://groups.yahoo.com/group/ZESTCaste/join/ Also have a look at our sister list, ZESTMedia: http://groups.yahoo.com/group/ZESTMedia/Yahoo! Groups Links <*> To visit your group on the web, go to: http://groups.yahoo.com/group/ZESTCaste/ <*> Your email settings: Individual Email | Traditional <*> To change settings online go to: http://groups.yahoo.com/group/ZESTCaste/join (Yahoo! ID required) <*> To change settings via email: mailto:[EMAIL PROTECTED] mailto:[EMAIL PROTECTED] <*> To unsubscribe from this group, send an email to: [EMAIL PROTECTED] <*> Your use of Yahoo! Groups is subject to: http://docs.yahoo.com/info/terms/
