10thNational Seminar on

“HUMAN RIGHTS AND DISADVANTAGED GROUPS”

Organized By: Suraj Sansthan, Jaipur

Topic: Victimization of Dalits in India and Indian Legal Framework

Author

Name: Shashank Shekhar Pandey

(2nd year B.B.A LL.B, Symbiosis Law School Noida)

Email – Id: shashankspandey14@gmail.com

Postal Address: A-15, G-48, Sanskriti Awass Boys Hostel, Bishanpura, Near Labour Chouk

Sec-58, Noida (201301), Uttar Pradesh

Contact No.: +91-9650759217

Co-Author

Name: Shubhangi Upadhyay

(2nd year B.A LL.B, Symbiosis Law School Noida)

Email – Id: shubhisharma707@gmail.com

Postal Address: Flat no. 1706B, Krishna Apra Sapphire, Vaibhav Khand , Indirapuram ,

Ghaziabad ,Uttar Pradesh

Contact No. : +91-8447258812

Victimization of Dalits in India and Indian Legal Framework

Abstract

Shakespeare once said “What is there in the name?” But the harsh truth is, in India everything is

in the name. Call them Dalits or Harijans it hardly matters. What matters is that they have been

oppressed since a long time. Uncountable incidents happen on a regular basis to this group of

population irrespective of where they are. The recent event of the death of a student named

Rohith Vemula in University of Hyderabad is an example of the loopholes present in current

socio-legal fabric of India.

Any nation cannot progress until its citizens do and being an indifferent part of the populous of

the nation this sector needs most of the attention of the society. Though very rarely we see any

incident in urban areas which gets attention of the society but comparing the urban areas with

rural areas of the nation, where the casteism is still prevalent most of the cases go unreported and

these cases are most violent in nature. This further raises an alarm for the need of awareness

amongst this section of the society.

The legal framework in India has provided for various safeguards to implement the objectives

enshrined in the constitution. But still discrimination is persisting in our system at large scale

which should be eradicated. Be it the society or executive or judiciary or any other field,

Somehow this section has been deprived of their rights everywhere. Though it is not humanely

possible to cover all the incidents going on against Dalits but still media has an important role to

play so that all the three parts of the system viz. Executive, Judiciary and legislature take a note

of it and act accordingly.

The researchers in this paper will be dwelling with the incidents where the victimization of

Dalits has taken place. Further authors will also be dealing with the statistics and analyzing the

reports. Additionally we will be presenting the Statues and laws existing and at last will be

critically analyzing the situation At last possible solutions to the issue will be proposed.

Keywords: Casteism, Constitution, Dalits, Discrimination, Executive, Harijans, Judiciary,

Legislature, Media, Oppressed

Victimization of Dalits in India and Indian Legal Framework

Shashank Shekhar Pandey1, Shubhangi Upadhyay2

Introduction

In India the world’s largest democracy, caste based discrimination has, remained a matter of

concern for most of the people. Many victims of this kind of issue are called as “Untouchables”.

This segment of the society was considered to be lesser human being hence unfit to be given any

human right. The architects of our Constitution were well aware of this fact thus provided them

with constitutional remedies. Additionally legislations specifically for this society were enacted.

Even after so much of efforts the discrimination is still persistent in society and “Dalits” are

subjected to violence viz. sexual, physical, psychological. So, ultimately even this kind of

potential recipe of equality hasn’t done much but little to reduce the malpractice going on against

167 million dalits3 and the probable cause behind the same can be various social, economic and

historical perspectives reasons.

Caste Atrocities and the Law

Founders of our Constitution were aware of the fact that dalits are facing some or another sort of

discrimination due to caste system so embodied in society. Dr. B.R. Ambedkar deciphered the

basis of the caste system and existing discrimination present and having strong hold in the social

and economic realms of the Indian society. He Said that:

“On the social plane we have an India based on the principles of graded inequality, which means

elevation of some and degradation of others. On the economic plane we have a society in which

there are some who have immense wealth as against many who live in abject poverty.”4

He had an opinion that the Hindus’ vested interests were limited to certain arenas i.e. they

desired to dominate over all the resources for e.g. economic and societal resources of the

community. Trying to end this custom of untouchability has been going for quite a long time but

1 2nd year B.B.A LL.B, Symbiosis Law School Noida.2 2nd year B.B.A LL.B, Symbiosis Law School Noida.3 Smita Narula, “Equal by Law Unequal by Caste: The „Untouchable‟ Condition in Critical Race Perspective”, 26 Wis. Int‟l. L. J. 255 (2008).4 D. Raja, “Dalit Question and Caste-Class Issues”, 45(18) Mainstream 11 (2007).

wasn’t able to produce any success because of lack of participation from the side of

untouchables.5 He further stated that if equality in India has to be implemented in its truest sense

this whole system related to caste has to be banished.6

Constitution of India and Dalit Rights

Framers of the Indian Constitution to create a society void of casteism in it tried to restructure

the system through constitutional provisions ensuring that no further annihilation to be faced by

‘Dalits’ who are nothing but the unfortunate victims of the caste system through providing them

the right to equality and dignity7 as given in constitution itself.

Preamble of the Indian Consitution ensures to provide “social, economic and political justice,

equality of status and of opportunity and to promote fraternity assuring the dignity of the

individual” to citizens, leading or indicating to abolish any kind of inequality. Fundamental

rights in Part III of the Constitution of India assured equality, freedoms and a dignified life,

Article 14 being the source of this law and provided equal protection of law to all. Further

Article 15 of the Constitution prohibits, discriminating anyone on the scale of caste,creed or race

and further it allows laws to be instituted in favor of SC’s and ST’s.8 . The frames of The

Constitution did not just thought about the future but also thought to solve the issues and

redressed for the past by providing for positive discrimination which enabled the state to legislate

special laws and policies for the scheduled castes and compensating them for the prejudices

faced by them since centuries.9 Further Article 17 specifically talks about abolishment the

practice of untouchability making it an offence punishable by law.10

5 Shailendra Kharat, “Dalits and Human Rights”, 9 (2) Journal of Institute of Human Rights 56-57 (2006).6 C. Hargopal, “Rights of Dalits: Law and Reality”, 1 Journal of the NHRC 136 (2002).7 K.I. Vibhute, “Right to Live with Human Dignity of Scheduled Castes and Tribes: Legislative Spirit and Social Response- Some Reflections”, 44 JILI 469 (2002).8 Constitution of India, art. 15(4) provides: “Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.” 9 Willian J. Eisenman, “Eliminating Discriminatory Traditions against Dalits: The Local Need for International Capacity-Building of the Indian Criminal System”, 17 Emory Int‟l L. Rev. 146 (2003).10 Id., art. 35 of the Constitution of India enables the Parliament with exclusive power to make law prescribing punishments for the acts made punishable under Part III. Parliament has enacted Untouchability (Offences) Act, 1955, for prescribing punishment for the offence of „Untouchability‟.

Justice Ramaswamy in State of Karnataka v. Appu Balu Ingale11 emphasized on the fact that the

Constitutional protection includes “behind its monstrous untouchability relentlessly practiced for

centuries dehumanizing the dalits”. To ensure the effectiveness of Article 17 Untouchability

(Offences) Act, 195512 was legislated. This Act confered civil rights and provided for redressal

mechanism in case there are violations of such rights. Also keeping in mind the effects of

religion on the people of this country and especially on the practice of untouchability, the right to

religion has been subjected to other provisions enshrined in the constitution indicating that the

practice can’t be justified on the name of religion. Thus causing hindrance to Hindus with respect

to Secularism13. To abolish the notion of servicing upper castes by the lower castes, article 23

was drafted and it clearly prohibits bonded labour. Further to provide them with equal

representation in law making, the constitution provided the provisions for reservations in the

general and state elections14 in addition to it they were also provided with reservation in services

of the state to uplift them economically. In addition to the provisions listed above herein, many

other legislations are enacted to abolish this barbaric custom like The Employment of Manual

Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 to eliminate the most

disrespecting practice of manual cleaning of human excreta by members of scheduled castes.

Irony here is that though long outlawed, this practice continues in most states even now. The

Union Ministry for Social Justice and Empowerment admitted this fact in FY 2002-03 that

around 6.76 lakh (676,000) manual scavengers still exist in India and 92 lakh (9,200,000) dry

latrines, spread across 21 states and union territories are still in practice. As per some unofficial

data, the numbers regarding manual labor in India can be around 1.3 million.15

The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

One of the many ways to improve conditions of dalits remained mere failure and still they are

victimized to such violence. The Protection of Civil Rights Act, 1955 was out rightly rejected by

the upper section of society leading to Dalits facing harassment more grave in nature.16 The 11 AIR 1993 SC 1126.12 Renamed as the Protection of Civil Rights Act in 1976.13 See Supra note 9.14 Supra note 8. arts. 330, 332, 243(D), 343(T) respectively.15 Human Rights Watch, Hidden Apartheid: Caste Discrimination against India's Untouchables 83 (2007), available at: http://www.chrgj.org/docs/IndiaCERDShadowReport.pdf (visited on March 4, 2016). 16 T.R. Naval, Law of Prevention of Atrocities on the Scheduled Castes and Scheduled Tribes 6 (Concept Publishing, New Delhi, 2001).

increase in atrocities blocked the path for effective implementation of this act. Rajendra Kumari

Bajpai, while moving the SC & ST Bill in the Parliament accepted the fact that cause behind all

this was preference given to dalits by the state itself. She stated that:

“When they assert their rights and resist practices of untouchability against them or demand

statutory minimum wages or refused to do any bonded or forced labour, the vested interest tries

to cow them and terrorize them. When the scheduled castes and scheduled tribes try to preserve

their self-respect or honour of their women, they become irritants for the dominant and the

mighty...”17

Some of the incidents includes making a person of this sect eat things like human excreta,

execution of rape on SC women and forcing them to walk without any cloths in the public etc.

So for preventing caste based violence the Parliament legislated the SC & ST (Prevention of

Atrocities) Act, 1989 (hereinafter referred as anti-atrocities law).18

Atrocity

The above mentioned act declares more than a dozen acts of atrocities punishable and according

to anti-atrocities law the following acts are to be termed as “Atrocities” against SC/ST it

provides for:

Offences against human dignity like forcing the SC/ST members to eat inedible or

obnoxious substances,19

Dumping excreta or obnoxious substances with intent to cause injury, insult or

annoyance,20

Stripping, dishonoring or outraging modesty of a SC/ST women21 and her sexual

exploitation,22 forced or bonded labour,23 intentional public humiliation.24

17 Statement of Object and Reasons, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.18 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, came into force on Jan. 30, 1990. 19 Id., s. 3(1)(i).20 Id., s. 3(1)(ii).21 Id., s. 3(1)(iii), (xi).22 Id., s. 3(1)(xii).23 Id., s. 3(1)(vi).24 Id., s. 3(1)(x).

Property related offences like wrongful cultivation25 or dispossession26 of land, wrongful

eviction from land, premises, house or other place of residence or village27

Unauthorized interference with the enjoyment of rights over land and water.28

Offences like intimidation or coercion of voters to either abstain from voting or to vote

for a particular candidate.29

Enforcing social disabilities like corrupting or fouling water used by members of

SC/STs.30

Denial of rights of passage or entry to public places.31

Abusing legal process like insulating false, malicious or vexatious legal proceedings.32

Furnishing false or frivolous information to a public servant.33

Above mentioned offences are made punishable with an imprisonment for a term not less than

six months but nor more than five years and with fine. Adding to these

Giving or fabricating false evidence leading to the conviction of a SC/ST person.34

Causing disappearance of evidence against offenders guilty of atrocities.35

Committing mischief by fire and other explosive substances with an intention to cause

damage to the property of the SC/ST people.36

Have been made made punishable with death sentence, life imprisonment and imprisonment for

a term between six months to seven years with fine.

Atrocities on Dalits and Human Rights

25 Id., s. 3(1)(iv).26 Id., s. 3(1)(v).27 Id., s. 3(1)(xv).28 Id., s. 3(1)(xiv).29 Id., s. 3(1)(vii).30 Id., s. 3(1)(xiii).31 Id., s. 3(1)(xiv).32 Id., s. 3(1)(viii).33 Id., s. 3(1)(ix).34 Id., s. 3(1)(i).35 Id., s. 3(1)(vi).36 Id., s. 3(1)(iii).

In spite of the existence of the framework for protection of the SC/ST’s from any kind of the

violation for their rights the problem hasn’t been solved out yet .The constitution focuses upon

creation of a indiscriminate society. While Dr. B.R. Ambedkar, gave his speech while

forwarding the draft constitution in 1949 , his obvious fear was clearly visible when he stated

“On 26th January 1950, we are going to enter into a life of contradictions. In politics we will

have equality and in the social and economic life we will have inequality. In politicswe will be

recognizing the principle of one man, one vote and one vote, one value. In our social and

economic life,we shall, by reason of our social and economic structure, continue to deny the

principle of one man, one value.”37

These words which came out of Dr. Ambedkar are seem to be much relevant and true in current

scenario as this community has been denied of their rightful socio-economic claims even after

the 60 years of independence. Practicality and papers show two different stories with huge

contrast in them. The law so implemented has been a mere failure and a blot in face of legislature

as well as executive in terms of its effectiveness and enforcement.

For Example: In a village of Madurai district, A woman was forced to drink water mixed with

excreta just because she resisted the advances made by upper cast villagers.38 Additionally in one

such incident which happened in Bihar 60 people were killed as result of a advances made by

activists of Ranvir Sena . The incident was the outcome of the redistribution of the land to the

dalits by the state and state knowing everything before hand went on to be nothing but a silent

spectator. 39

Causes of Atrocities:

Caste Hatred and Untouchability

This is one of the ancient reasons why this practice even came in existence.Many of the incidents

go unreported because state is mostly run by upper cast people and they have internalized the

37 See supra note 4.38 Indian Express, Sep. 30, 2003, as quoted in Jimmy Dhabi, “Dalit Human Rights: Issues and Perspective”, 54(1) Social Action 33(2004). 39“Murder and Mayhem”, The Hindu, December 14, 1997, s cited in supra note 3 at 60.

matter so much that no one even bothers to oppose and even in cases of oppositions their protests

have been pressed down.

Illiteracy and poverty

Illiteracy being one of the major factor when combined with next to absolute poverty amonst

many people of this community act as an obstacle to enforce their rightful claims and raises an

issue that where should they even go for the enforcement of such claims. This makes people in

this community economically dependent on the people belonging to the upper cast and which use

them and at times even abuse them for their selfish instincts. So being backward along with

unaware and poor causes a rise in terms of atrocities committed on them. Instances can be seen

where people were killed because they resisted against the expropriation of their land.40

Self-Assertion by the Scheduled Castes

Firstly there are hardly a handful of people who are actually aware of their rights and claims and

merely just being aware doesn’t helps them much because if they try to resist any kind of

oppression in return all they get is a higher degree of atrocity being inflicted on them as this

resistance contradicts with the vested interest of upper cast people regarding dominance over the

society. An incident worth citing here is of Tamil Nadu where 42 dalits were burnt to death by

upper caste hooligans locked which was the result of dalit agricultural labours deciding to protest

against low wages and had started getting organised.41

Lack of Political Will - State Complicity `

States’ motive in all of this has been in focus as the Majority of people who run the state ar upper

cast people and they turn a blind eye when it comes to the SC/ST’s. Rather at times they collude

40 Manoranjan Mohanty, “Kilvenmani, Karamchedu to Khairlanji: Why Atrocities on Dalits Persist”, available at: http://www.boell- india.org/download_en/mohanty_amrita_corrected.pdf (visited on Mar. 3 2016).

41 Ibid.

with the perpetrators leading to increase in cases. Which clearly indicates that they are acting

totally against of what their actual role is.42

Police and Dalits

The police department was created to safeguard and protect the right of victims of any offence

but when it comes to dalits their role is also in question. Like state they at times collude with the

perpetrators resulting in many cases going unreported and this underreporting of cases being

very common in case of SC/ST(s) even if it prima facie indicates any violence. In a study carried

by an organization, non-governmental in nature concluded in the study that around 36% of cases

weren’t registered and in 84% the Act was actually invoked.43 and in many of the cases the

police manipulates evidences and witnesses thus weakening the case.

National Human Rights Commission in one of its report said that:

“Police resort to various machinations to discourage scheduled castes/scheduled tribes from

registering cases, to dilute the seriousness of the violence, to shield the accused persons from

arrest and prosecution and, in some cases, the police themselves inflict violence”.44

Police force at times have been directly involved in terms of inflicting atrocities best example

being the Ramabai kilings where an officer named M.Y.Kadam who was accuse of many such

atrocities ordered a firing in which 10 people died and later one the people refused to file any

sort of complain against him.45 This indicates the ill-will against the SC/ST’s and arbitrary

actions by authorities and thus hampering the effectiveness of laws in force. There have been

instances where police have camouflaged there actions arresting the innocents in face of

searching naxalites in dalit villages of Bihar

Human Rights Watch describes this act as:

“The pattern of raids consisted of arbitrary arrests and assaults on dalit men and women and

often included looting and destruction of property. In some cases, police remove their badge

42 Ibid.43 See National Human Rights Commission, Report on Prevention of Atrocities on Scheduled Castes 3 (2004)at 33 (Study conducted by NGO Navsarjan in the State of Gujrat).44 Id. at 25 .45 Supra note 3 at 127-132.

numbers so villagers would not be able to identify and file cases against them. Studies conducted

by the Tamil Nadu Commission for Scheduled castes and Scheduled tribes in various southern

district villages concluded that attacks on these dalit villages were motivated by a desire to

cripple dalits economically by targeting obvious symbols of newfound wealth. ”46

Finally it wont be called as extrapolating of fact if we say that protectors themselves have

became the violators in this case and state has acted male-fide affecting the effectiveness and

implementation of anti-atrocity laws.

Judiciary and Dalits

Judiciary in the world’s largest democracy has been entrusted with the act to safeguard and

uphold rule of law but the lower judiciary has failed to realize and act according to this duty,and

many times judgment’s are governed by the judge’s personal prejudices and biases. To cite one

of the instance a Judge at Allahabad High Court got his office purified by ganga water because a

dalit judge occupied the same office previously.47 There are incidents where the lower judiciary

has done injustice to dalit victims of abuse. A instance though being ridiculous but worth citing

is the rape of a social worker Bhanwari Devi in State of Rajasthan. Which came before the

Hon’le Supreme Court in the famous case of Vishakha v. State of Rajasthan,48

In this case the sessions judge acquitted all the accused of the rape charges amongst others

saying that how an upper cast men will rape a dalit women. Though an investigation carried by

National Commission of Women concluded otherwise and said it was beyond any reasonable

doubt that in fact the offence of rape was commenced.49 This raises an issue that how can we

trust on the fact of impartiality in judiciary

A study done by Mr. Vajibhai Patel, the Secretary of Council for Social Justice, concluded after

studying 400 judgments passed by different district courts of Gujrat, that many cases collapsed

because of negligent investigation by police department and in others the prosecution did collude

46 Id. at 102.

47 Supra note 9 at 168.48 AIR 1997 SC 3011.49 Ruma Pal, “Redress for Violence against Women in India”, 8 Developing Human Rights Jurisprudence 7(1998) - (citing unreported judgment of the Rajasthan Trial Court dated November 15, 1995), as cited in Avani Mehta Sood, “Redressing Women‟s Rights Violations”, 1 Jindal Global Law Review 147 (2009).

with the perpetrator of the crime resulting in shutting down of case. He also, nullified the

perception that inefficiency in anti-atrocities law is because of false complaints being lodged.50

Additionally , the special courts51 so constituted under the law can’t exercise their original

jurisdiction over the matter unless the magistrate commits the case to them as per procedure laid

down in Cr.P.C. Which as a trend hasn’t been done on a frequent basis and most of the time

Sessions Court have been handling these cases. Supreme Court in Gangula Ashok v. State of

Andhra Pradesh,52 categorically stated that section 193 of the Code imposes obligation on all the

courts of sessions, until and unless code expressly exempts the same, against taking cognizance

of offences as a court of original jurisdiction.

The prime motive of the law so laid down is defeated by this definition, as there is no possibility

of speedy trial and disposal because of the procedure, which is in fact prolonged and courts have

to wait for committal of cases.

This is the high time when state should assume its real position of securing the rights of dalits

because till now it has acted as nothing but hindrance to the same irrespective of their

participation being direct or indirect in nature and its connivance with the wrong parties.

Conclusion

Undeniably the inequality still persists in one form or another for dalits. There exists a cloud of

danger which on an often basis bursts on them which makes them vulnerable to all kinds of

atrocities and discrimination still being persistent challenges or rather defeats the values of the

Constitution itself. Ineffective implementation of laws, cases going unreported/under reported

are some of the reasons for increase in the numbers of atrocities committed. Adding to it

Improper investigation in such cases result in low conviction rates. And the low rate of

conviction can be result of multiple probable factors like caste prejudice of the prosecutors

including the judiciary and the law enforcement machinery. A check on the law enforcement

machinery in this regard is much needed and requires legal scrutiny on an urgent basis.Also state 50 Subhash Gatade, “A New Milestone in the Movement for Dalit Emancipation”, 45(39) Mainstream 21 (2007).

51 Constituted under s. 14 of the SC/ST (Prevention of Atrocities) Act, 1989 (The court of sessions to be a special court) .52 AIR 2000 SC 740.

has, failed to prevent or contain the atrocities on dalits, thus role of the civil society is now very

important for the protection of heir rightful claims. Also, many NGOs have initiated researches

in this field but due to lack of follow-up mechanism their efforts are in vain.

Adequate steps should be taken to implement the laws effectively and to remove the loopholes in

it. Special courts should be constituted under the Act should be given the power to exercise their

original jurisdiction over these matters and procedure should be changed as Supreme Court‟s

ruling in Gangula Ashok‟s Case53 requires to be overruled. In states like Haryana, Rajasthan,

Khap Panchayat’s should be scrutinized and their legitimacy must be reviewes.54 National

Commission for Scheduled Castes should be provided with a strong investigation and legal wing

to investigate cases also sufficient budget should be granted. Endogamy is one of the peculiar

features of the caste system in India and it is also a hindrance in bringing out changes in the

mindset of the upper caste people and to make advancement, as a society state should

promote/encourage Inter-caste marriages.

Socio-economic status of SC/ST(s) makes them dependent on the upper caste this is one of the

factors for growth in atrocities.55 though state has taken affirmative measures in the form of

reservations these measures have not reached to the needy. Data from the various sources show

that very few of the target group has taken benefit of these provisions.56

Law has to play an important role in this scenario to prevent these kinds of atrocities as they

affect very base of human rights, which is human dignity and furthermore, it denies to a large

segment of this society the right to be human.

53 Ibid.54 “Dalits Atrocities: September to December 2005”, Human Rights News Bulletin, available at: http://www. indianet.nl/dalitatroc0509.html (visited on Mar. 4, 2016). 5585% of dalits forms part of the rural population. Over 75% of dalits performs land connected work, 25% as marginal or small farmers and over 50% as landless labourers earning less than US $1 per day. Though they are only 16% of the total population, dalits constitute 60% of those below the poverty line. Anand Teltumbde, “Globalization and Dalits”, as cited in Supra Note 3 at 285.56 According to 1996 estimate only 1.1 Million out of the then population of 138 Million were employed in sectors that fall under the domain of reservations, a paltry 0.8%. With the privatization of public sector industries since the advent of economic reforms in India in the early 1990s, that percentage has likely declined. S.M. Michael (ed.), Dalits in Modern India: Vision and Values (SAGE Publications, Los Angeles, 2nd edn., 2007), as cited supra note 3 at 313.