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The practice of “untouchability,” other caste-based discrimination, violence against Dalit men, women, and children, and other abuses documented in this report are in violation of numerous domestic and international laws. A body of international human rights conventions, domestic legislation, and constitutional provisions collectively impose on the government of India a duty to guarantee certain basic rights to the Dalit population and to punish those who engage in caste-based violence and discrimination.

Other chapters of this report describe the pattern of state complicity in attacks on Dalit community members. This chapter outlines the government’s legal obligations and the manner in which state complicity extends to the non-registration of cases against caste Hindus, including the government’s failure to implement the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. A brief description of the government’s two-pronged strategy to improve the socio-economic status of scheduled castes and to provide them with legal protection in the form of social welfare legislation is also provided. Like the Atrocities Act, the strategy has been undermined by a lack of political will to ensure its implementation. The government of India has failed to provide Dalits with the most basic of constitutional guarantees described below.

India’s Obligations under Domestic Law

The Constitution of India proclaims the decision of the Constituent Assembly (which framed the constitution) to provide social, political, and economic justice for all. To this end the constitution has several provisions to protect scheduled castes and to improve their position. The constitution affects social justice in two ways. First, it confers rights on men and women alike, through “fundamental rights” which can be enforced by the courts. Second, it directs the states to implement “directive principles of state policy.” Although these are not enforceable in Indian courts, they are declared to be fundamental in the governance of the country and as such have moral and political value.

Scheduled castes and the constitution

Article 17 of the constitution abolishes the practice of “untouchability” and punishes the enforcement of any disability arising out of the practice. Article 21 guarantees the right to life and liberty. The Indian Supreme Court has interpreted this right to include the right to be free from degrading and inhuman treatment, the right to integrity and dignity of the person, and the right to speedyjustice.52 When read with Article 39A on equal justice and free legal aid, Article 21 also encompasses the right to legal aid for those faced with imprisonment and those too poor to

afford counsel.53

Article 23 prohibits traffic in human beings and other similar forms of forced labor. Since the majority of bonded laborers belong to scheduled castes, Article 23 is especially significant for them.54 Similarly, Article 24 provides that no child under the age of fourteen shall work in any factory or mine or engage in any hazardous employment. Again a majority of children engaged in bonded labor in such hazardous industries are scheduled caste members. Article 45 charges that the state shall endeavor to provide free and compulsory education for all children until they reach the age of fourteen, while Article 43 calls on the state to secure to all workers, agricultural, industrial or otherwise, a living wage and conditions of work ensuring a decent standard of life.

Article 46 comprises both development and regulatory aspects and stipulates that: “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and forms of exploitation.” As the article falls under the category of directive principles and not fundamental rights, it cannot be enforced by the state’s courts. Article 15(4) empowers the state to make any special provisions for the advancement of any socially and educationally backward classes of citizens, or for scheduled castes and scheduled tribes. This particular provision was incorporated into the constitution through the Constitution (First Amendment) Act, 1951 and has enabled several states to reserve seats for scheduled castes and scheduled tribes in educational institutions, including technical, engineering, and medical colleges. It has also paved the way for reservations in police forces.

Article 330 provides reservations for seats for scheduled castes and scheduled tribes in the Lok Sabha (the House of the People), while Article 332 provides for reservations in the state legislative assemblies. Article 334 originally stipulated that the above two provisions would cease to have effect after a period of ten years from the commencement of the constitution. This article has sincebeen amended four times, extending the period by ten years on each occasion. The provision is now set to expire in January 2000.

Through Article 16(4) the state is empowered to make “any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” The claims of scheduled castes and scheduled tribes, as per Article 335, shall also be taken into consideration, consistent with maintaining efficiency of administration, in the making of appointments services and posts in connection with the union or of a state.

In addition to constitutional provisions, the government of India has pursued a two-pronged approach to narrowing the gap between the socio-economic status of the scheduled caste population and the national average: one prong involves regulatory measures which ensure that the various provisions to protect their rights and interests are adequately implemented, enforced and monitored; the second focuses on increasing the self-sufficiency of the scheduled caste population through financial assistance for self-employment activities through development programs to increase education and skills.55

The protective component of this strategy includes the enforcement of those legal provisions that make up the Protection of Civil Rights Act, 1955, and the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989; of other state and central government laws; and of “positive discrimination” through reservations in the arenas of government employment and higher education. These protective measures are monitored by the National Commission for Scheduled Castes and Scheduled Tribes. The development measures for the educational, social, and economic upliftment of scheduled castes are administered by the Ministry of Welfare through the state governments.56

The National Commission for Scheduled Castes and Scheduled Tribes

The National Commission for Scheduled Castes and Scheduled Tribes is a body set up pursuant to Article 338 of the Indian constitution. It has been entrusted with the responsibility of ensuring that the safeguards and protections that have been given to scheduled castes and tribes are implemented. As part of the National Commission, the Commission on Atrocities Against Scheduled Castes andScheduled Tribes oversees implementation of the Prevention of Atrocities Act, 1989, and the Protection of Civil Rights Act, 1955, though does not have a statutory responsibility to do so. The commission both receives complaints and proactively investigates matters that come to its attention through news reports or by any other means. Under the constitution the commission has the powers of a civil court and can call on anyone for evidence to ensure that the laws are being implemented. The commission lacks the powers of a criminal court, however, and therefore cannot enforce its findings.57

The Protection of Civil Rights Act, 1955

With an eye to eradicating pervasive discrimination practiced against scheduled-caste members, the central government enacted the Protection of Civil Rights Act, 1955 (PCR Act) to enforce the abolition of “untouchability” under Article 17 of the constitution. The PCR Act punishes offenses that amount to the observance of “untouchability.” These include, inter alia, prohibiting entry into places of worship, denying access to shops and other public places, denying access to any water supply, prohibiting entry into hospitals, refusing to sell goods or render services, and insulting someone on the basis of his or her caste.58

In 1973 the Protection of Civil Rights Cell was established to respond to a lack of convictions under the PCR Act.59 According T. K. Chaudary, the inspector general of police for the PCR cell in Maharashtra from 1992 to 1996, and current Joint Commissioner of Police, Mumbai (Bombay) Police:

Until 1973 there was no conviction. It was all at the whims and fancies of police officers. They only took action if the person belonged to the right caste. So in order to streamline the act, the cell came into place. From 1975 onwards they played a coordinating role. They had no power of their own but made sure some cases were registered and the some complaints were heard; still there were hardly any convictions... witnesses turned hostile.60

Chaudary added, “Society as a whole never accepted the PCR Act. No one ever thought that name-calling wouldn’t be okay. Ill-treatment was very common.”61 The act was also vulnerable to abuse. “It was easy to make an allegation that someone was called by his or her caste name.”62

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

The greatest deficiency of the Protection of Civil Rights Act was the fact that abuses against Dalits were not limited to name-calling or denial of entry into public spaces: violence was a defining characteristic of the abuse. Thirty-four years after the introduction of the PCR Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, was enacted to bring these other forms of abuse to an end. “In the Atrocities Act_ the complainant is given more weight... There are also stringent provisions against the police for negligence.”63

The promulgation of the act itself was an acknowledgment by the central government that abuses, in their most dehumanizing form, continue to take placeagainst Dalits throughout the country. The Tamil Nadu nodal (implementation) officer for the Atrocities Act explained to Human Rights Watch:

The Atrocities Act is very stringent. It is needed to eradicate the practice, not just control it. It is the second phase of the Protection of Civil Rights Act which is very soft. The 1989 [Atrocities] Act is grounded in the understanding that scheduled castes are being subjected to violence, not just the practice of “untouchability.” There was a long period of dialogue before its enactment. After forty years of India, people began to acknowledge that violence continued to be perpetrated and it needed to be stopped. The act presumes that if a non-scheduled-caste member harms a scheduled-caste member then it is because of the culpable mind of “untouchability” [a belief in the inferiority of lower castes]. They don't have to utter the caste name in the 1989 act; any humiliation is an offense.64

A list of offenses under the act provides a glimpse into the forms that such violence can take, several of which have been documented in this report. Section 3(1) stipulates that the following acts, when committed by a person who is not a member of a scheduled caste or a scheduled tribe, are atrocities and thereby punishable by a term of six months to five years with a fine.

· Forcing a member of a Scheduled Caste or Scheduled Tribe to drink or eat any inedible or obnoxious substance (Section 3(1)(i));

· Acting with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood (Section 3(1)(ii));

· Forcibly removing clothes from the person of a member of a Scheduled Caste or Scheduled Tribe, or parading him naked or with painted face orbody, or committing any similar act which is derogatory to human dignity (Section 3(1)(iii));

· Wrongfully occupying or cultivating any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or Scheduled Tribe, or getting the land allotted to him transferred (Section (3)(1)(iv));

· Wrongfully dispossessing a member of a Scheduled Caste or Scheduled Tribe from his land or premises, or interfering with the enjoyment of his rights over any land, premises, or water (Section 3(1)(v));

· Compelling or enticing a member of a Scheduled Caste or Scheduled Tribe to do “beggar” or other similar forms of forced or bonded labour, other than any compulsory service for public purposes imposed by the Government (Section (3)(1)(vi));

· Forcing or intimidating a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote [for] a particular candidate or to vote in a manner other than that provided by law (Section (3)(1)(vii));

· Corrupting or fouling the water of any spring, reservoir, or any other source ordinarily used by members of the Scheduled Castes or the Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used (Section (3)(1(xiii));

· Denying a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructing such members so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to (Section 3(1)(xiv));

· Forcing or causing a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village, or other place of residence (Section 3(1)(xv)).

· Providing legal aid to victims;

· Making provisions for travel and maintenance expenses for witnesses and victims;

· Providing prompt economic and social rehabilitation to victims;

· Appointing officers for initiating or exercising supervision over prosecutions under the act;

· Identifying areas where Dalits would be subject to periodic or large scale atrocities, and;

· Setting up citizens committees to assist the government in the formulation and implementation of measures under the act.

Offenses under the act are cognizable—an officer can arrest without a warrant—and non-bailable. Provisions of the Criminal Procedure Code regarding anticipatory bail do not apply.66 Property can also be attached, sold, or forfeitedto recover fines imposed by the court. When serious crimes such as rape, murder, or assault are proved, the punishments meted out are much greater than those provided for under the Indian Penal Code.

In 1995 the government of India enacted accompanying rules for the Atrocities Act. The rules set out the amounts of, and timetables for, state-allotted compensations for victims of various crimes defined under the act. Rules 16 and 17 call for the constitution of state and district-level vigilance and monitoring committees comprising official and non-official members. The committees are responsible for reviewing, inter alia, implementation of the act, prosecution of cases, victim relief and rehabilitation, and the role of different officers and agencies charged with the act’s implementation. The Atrocities Act, and its accompanying rules, could go far in promoting justice and human rights among members of scheduled castes and scheduled tribes, but only if they are properly implemented and those whom the act is meant to protect are made aware of its existence and the rights that they possess. A full text of the act, and the accompanying rules, are provided in the appendix.

Failure to Implement the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

It is a great irony that we try to implement the act through an agency that is perceived as an agency of oppression.

Higher-caste police already have a biased mind. They assume that complaints of [Dalits] are made up or bogus. It is with this mentality that they investigate. Any person who has already presumed something as wrong will ultimately prove the case wrong to prove him or herself right.

Although a potentially powerful piece of legislation, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is hampered by thepolice’s lack of willingness to register offenses or their ignorance of the terms of the act itself. Under Indian law, a police officer is bound to enter in the station diary all reports brought to him concerning all cognizable and non-cognizable offenses. Failure to do so, or entering a report that was not made to him, is punishable under Section 177 of the Indian Penal Code. In most cases, however, the offending officer escapes punishment. The police take on the role of the judiciary and determine the merits of the case even before pursuing investigations. Cases at all levels are influenced by caste bias, corruption and ignorance of procedures under the Atrocities Act.

The functions of the Indian police are governed by the Indian Police Act, 1861, the Code of Criminal Procedure, 1973, the Indian Penal Code, 1860, the Indian Evidence Act, 1832, the Constitution of India, and other state acts. The government of India has known about the extent of police corruption in the registration of cases at least since 1979 when the National Police Commission issued a devastating indictment of police behavior. Two decades later, none of the police commission’s recommendations have been adopted, and police continue to detain, torture, and extort money from Dalits without much fear of punishment.69 Police often escape liability for their own abuses of Dalits and are rarely punished for their negligence in the non-registration of caste-related cases. Even when cases are registered, the absence of special courts to try them (see below) can delay conviction for up to three to four years. Some state governments, including those of Maharashtra and Uttar Pradesh, have come under upper-caste pressure to repeal the legislation altogether.

Non-registration of cases

Wherever the Atrocities Act is not used properly, it is because there is no knowledge, no strength, so it has failed. It is a tool. On its own it will not be implemented. The use of Atrocities Act as a tool has changed people’s lives. There are hundreds of cases I can quote.

Most beneficiaries of the Atrocities Act know neither the content of the act nor which agencies are responsible for its implementation. In an interview with Human Rights Watch, the then-chairman of the National Commission for Scheduled Castes and Scheduled Tribes asserted, “Many states do not even have translated copies of the act or the rules. Station-house officers do not even know of its existence.”71 In many instances, however, even knowledge of proper procedures has not led to registration or investigation of cases. Because offenses under the Atrocities Act are non-bailable, the mere registration of certain offenses can result in fifteen to twenty days in jail for the accused. An activist in Tamil Nadu explained, “If any case comes under the Atrocities Act, the accused will go straight to jail without any bail. So caste Hindus cleverly use the police to avoid putting cases under the act.”72 Police manipulate First Information Reports [FIRs] and charge sheets, charging the accused under sections of the Indian Penal Code or under lesser offenses of the Atrocities Act. As explained by C. V. Shankar, director for the Adi Dravida Tribal Welfare Department, government of Tamil Nadu, the non-registration of Atrocities Act cases is deliberate:

They are biased because of their own caste. The police in general try to avoid registration. They want to settle cases with compensation. There are many power politics at the local level. Unless there is public pressure, the police administration tends to side with landowning communities that have political clout. A scheduled-caste person is therefore at the mercy of landlordsbecause there are police pressures and other pressures to compromise the case.73

Part of that pressure arises from the exigencies of police corruption: “Whoever gives more money gets their side of the case registered. In more serious cases, they may have to register the case but then subsequent investigations get thwarted.”74 An activist working in over sixty villages in Tamil Nadu described the nexus between the police and upper-caste communities:

The police consider Dalits to be their enemies. They don’t register cases. They just say, “Don’t fight anymore. After all, they [caste Hindus] are taking care of you; they are giving you employment. They made a mistake, let it go.” And in so doing, the Dalits are usually persuaded to let the case go. In rare cases where they make an FIR, they will turn it around in the charge sheet and say that after investigation, they found that the FIR was not true. This is all to try and help the accused escape.75

Under Indian law if a police officer suspects the commission of an offense, he is obligated to investigate the facts and circumstances of the case. The officer must then send a report and a copy of the FIR to the magistrate empowered to take cognizance of the offense. If the officer-in-charge of the police station believes that there are insufficient grounds for investigation, then the reasons for non-investigation must be communicated to the complainant.76 In the case of a cognizable offense, if the police officer does not take action on the basis of an FIR, the aggrieved person can submit a complaint to the magistrate having jurisdiction to take cognizance of the offense.77 Despite these stringent procedures, Dalits generally hesitate to approach the police with their complaints. According to National Commission Chairman Hanumanthappa, “Scheduled caste people hesitate because they feel vulnerable. Even if they do report something, there is a tendencynot to register the case. Many times the station-house officer simply chases them away.”78

Due to the diligent efforts of many Dalit activists and lawyers in the past several years, police have begun to register more cases under the Atrocities Act but often only as a result of immense public pressure. Increases in registration, however, have not resulted in increased convictions. A Dalit lawyer who has been practicing in Tamil Nadu for seventeen years asserted that in his experience only 2 percent of cases end in conviction. “The investigating officers are upper-caste,” he said, “and the accused pay large amounts to judges to get an acquittal in the case.”79 The lack of convictions is a reflection of police and judicial corruption, of deficiencies in the investigation process, and of a lack of special courts to try Atrocities Act cases. Each is discussed in turn below.

Police investigations and use of witnesses

In Tamil Nadu, from 1992 to 1997, some 750 cases of atrocities against Dalits were registered annually by the state police. However, the number of convictions secured by protection of civil rights cells established in each district to implement the Atrocities Act was very low. From 1992 to 1997 only four out of 1,500 cases led to a conviction, despite the fact that in 1997, as many as 118 villages were considered by the government to be “atrocity-prone.”80 Police officers have attributed the problem to the lack of a supporting unit to investigate reported crimes (the PCR cell in each district is headed only by an inspector of police) and to the fact that “most police personnel come to the cells either because they are facing action for delinquency or inefficiency, or as punishment for refusing to toe the line of their political bosses.”81 One senior official complained, “With the PCR cells seen as a dumping ground of bad elements in the Police Department, how do you expect us to perform well?”82

A lack of witnesses can also hamper an investigation—they either do not exist or are unwilling to come forward out of fear or economic vulnerability. According to T. K. Chaudary, “They would lose wages for the day, so they cannot come to testify.”83

These cases take place in the privacy of rural areas where there are no witnesses available. The demand of Indian criminal law is that a witness must be available to prove the crime. Indian law does not accept circumstantial evidence easily. That is the basic crux of the matter. Also there is great distrust toward the investigating officer. Good persons do not come forward to become witnesses, only those who can be influenced by the police.84

Local police biases are mirrored at the judicial level. Should a case even reach the trial level, the judge’s own caste affiliations can color his or her perception of witness credibility: “Judges issue an opinion in favor of the accused because they belong to the same caste.”85 R. Balakrishnan, director of the Tamil Nadu chapter of the National Commission for Scheduled Castes and Scheduled Tribes, explained the obstacles at the trial level:

The implementing authorities are biased. Caste is inherited, and personal prejudices are put to use. Police don't take the job voluntarily; it is always thrust upon them. At the judicial level at least 90 to 95 percent of cases receive no punishment. I have studied many judgments and have seen that there is a tendency to accept evidence only from non-scheduled caste/scheduled tribe people. I have studied fifty to sixty cases; invariably the judge concluded that scheduled caste/scheduled tribe [SC/ST] evidence is not valid because they are an interested party. To attribute a pattern to a community is a prejudice in and of itself. That itself is an atrocity. They do not give weight to SC/ST evidence, but it is too much to expect evidence from a non-SC/ST when the victim is a Dalit. That is the dichotomy: if they did come forward, we would not need the act.86

Lack of special courts and special prosecutors

Even when cases are registered, there is no court to try them. No cases have gone to trial, so there are no convictions. Aside from paltry amounts from the prime minister’s relief fund, no compensation is given in the registered cases, as is required by the 1995 rules.

The backlog of cases is largely due to a lack of special courts and special prosecutors. Pursuant to the act, each revenue district within each state must designate a special court for the trial of such offenses. According to lawyers with the People’s Union for Civil Liberties (Tamil Nadu), almost all Atrocities Act cases go to regular sessions courts, which are already overburdened with original and appellate jurisdiction over district-level civil and criminal cases. Terrorism and Anti-Disruptive Activities Act (TADA) cases are also being sent to these courts.88 According to a PUCL attorney:

One court has so many nomenclatures. The whole purpose of a speedy trial is defeated. Even with all these new cases, not a single extra typewriter is added. In reality there is no special court. Half the day goes into calling names, calling civil court matters, dealing with civil and criminal appeals, interim orders, and bail applications.89

An activist who runs a legal aid organization in Gujarat claims that Atrocities Act cases can take up to three years to reach trial while all others “take only one year. Existing sessions courts are named as special courts, existing public prosecutors are named as special public prosecutors. Cases take so long that people are forced to compromise.”90 Chairman Hanumanthappa confirmed that the problem persisted throughout the country: “In practice, sessions courts aredesignated as special courts. They are already overburdened. More than judges, special prosecutors are required. There should be exclusive special courts.”91

In 1997 and 1998 four special courts were created in Tamil Nadu, in the districts of Madurai, Tirunelveli, Trichi, and Kumbakanam, to try Atrocities Act cases. Human Rights Watch spoke to the judge assigned to the Madurai district court, which at the time was handling cases from five districts; hundreds of cases had already been transferred to his court. Compensation in these cases was handled by the district collector and the district magistrate, not by the court itself. Without more special courts to share the caseload, the judge explained, the rate at which cases were tried would remain slow. Because of the length of time it takes to reach trial, and because of the severity of punishments under the act, the judge added that the accused were attempting to compromise cases by influencing witnesses, most of whom were already afraid to come forward for fear of the consequences: “I can depose only one or two cases a week. It takes so long that people are starting to compromise the case.”92

Unless special courts are established in each revenue district in each state, and unless witnesses feel protected by the police, the backlog of cases will continue, and increases in case registration will not result in increased convictions. All states should ensure establishment of these courts and appoint special prosecutors for trying cases that arise under the act.

Under-reporting of Atrocities Act cases: the Gujarat experience

An investigation conducted by Navsarjan, an NGO that has been working with Dalits in Gujarat since 1989, exposed the under-reporting of Atrocities Act cases and the biases of officers charged with its implementation. The study covered eleven “atrocity-prone” districts between 1990 and 1993 and showed that 36 percent of atrocities cases were not registered under the Atrocities Act. Moreover, in 84.4 percent of cases where the act was applied, cases were registered under the provision for name-calling (Section 3(1)(10)). That is, in many cases the actual and violent nature of abuses was concealed.93

Martin Macwan, founder and director of Navsarjan, told Human Rights Watch that the under-reporting continues to be a problem in his state and throughout the country. “The police say, ‘Give me the complaint in writing,’ and the complainant leaves. They take the writing as an application and do the preliminary inquiry but do not make it into an FIR. Without an FIR, the case cannot be registered.”94 Macwan added that apart from personal caste biases, this phenomenon could also be explained by pressures on the police to keep reported crime rates low in their jurisdictions. In the four years studied, police records showed that atrocities were up by 90 percent (both due to increased reporting and increased incidents),95 yet police reports also reflected that the general crime rate was down by 1.35 percent.96

The police see their primary duty as the maintenance of law and order. An increased crime rate sends the message that they are not doing their job and can often lead to suspensions, demotions, and other punishments.97 To keep up the facade of lower crime rates, police send information on only a portion of cases to district headquarters.98 Under-reporting at the district level gets reflected in state-level statistics and presumably gets even more diluted at the national level. Ultimately, “there is no system for getting authentic information, and the public has no way of counter-checking the information that is there.”99

The Navsarjan study also interviewed ninety-eight police officers of all ranks in the eleven districts surveyed, on their knowledge of and attitude toward the Atrocities Act. Dalits constituted a minority of the officers interviewed. Several deputy superintendents of police (DSP) in charge of implementing the actviewed the act as an obstacle between caste communities. “Because of the act,” one officer said, “Dalits have become more powerful, thus having an adverse impact on society.” Another added that “Dalits are dependent on non-Dalits for economic reasons. Because of this act they are spoiling their own chances of employment.” One DSP even complained, “We high-caste pay income tax which goes to the social welfare department that pays Dalits and they are the ones who make us accused and put us behind bars.”100 According to the survey, 75 percent of DSPs charged that Dalits were misusing the act and filing false cases for monetary gain. A Dalit superintendent of police rejected that assertion, saying, “Almost all laws are misused, but this act is for harijans [Dalits] and has direct provisions for stringent punishment. Therefore even a little misuse creates uproar in society.”101 Such uproar is best illustrated by the Maharashtra experience described below.

Attempts to repeal the Atrocities Act: the Maharashtra experience

That the Atrocities Act is perceived as a serious threat to upper-caste interests was readily apparent in the state of Maharashtra where, in 1995, a promise to repeal the act became a centerpiece of the Shiv Sena party’s electoral campaign. Caste-based violence is common in parts of rural Maharashtra.102 In September 1995 the Maharashtra state government began withdrawing over 1,100 cases registered under the act, alleging that many of the cases were false and registered out of personal bias.103 The stated goal of the drastic move, which began in 1994, was to “promote communal harmony.”104 On January 14, 1994, the state government renamed a university in Marathwada, eastern Maharashtra, as Dr. Ambedkar University. The renaming led to rioting and abuses by caste Hindus in the community. Many cases were registered under the Atrocities Act in the aftermath of the riots. In the week following the renaming, at least four Dalits werestabbed, Dalit huts and shops were burned in seven villages, and statues of Dr. Ambedkar were desecrated throughout the region.105

The withdrawal of cases by then-Chief Minister Manohar Joshi was in fulfillment of a promise made by Shiv Sena chief Bal Thackeray during his election campaign in Marathwada.106 The government also announced its intention to ask the central government to amend the act to limit its potential “abuse.”107 But the move to simultaneously withdraw so many cases was an illegal one. Section 321 of the Criminal Procedure Code requires the court’s consent for any case to be withdrawn from prosecution. Attempts to circumvent a piece of central legislation also raise fundamental questions about the state government’s constitutional responsibility.108

Despite the withdrawal of so many cases, a tremendous backlog in Atrocities Act cases remained in the state’s court system. According to the Protection of Civil Rights cell in Maharashtra, as of 1996, the average age of a case registered under the act was more than five years. A 1996 PCR cell report stated that of the 875 cases registered under the act in 1994, 692 were still pending at the investigation level. In 1993, of the 1,921 cases registered, 1,918 were still pending. In 1992 a total of 1,449 cases were registered under the Atrocities Act and the Protection of Civil Rights Act; 1,066 remained unsettled in the courts. In the same year, only eleven people were convicted under the Atrocities Act.109

As a senior official within the PCR cell observed, such delay “defeats the purpose of promulgation of such welfare legislation.”110 The PCR cell has repeatedly asked the Home Ministry to form special courts in the state to clear the backlog. As of December 1998, none had been established.

The Atrocities Act was enacted in part to increase convictions against those accused of caste abuses who would otherwise escape conviction under the Indian Penal Code. The withdrawal of cases ensured that “no one [would] take thelaw seriously anymore.” Its purpose was effectively subverted.111 NGOs working in the area also raised similar concerns: “Once this law becomes toothless it would become difficult for the Dalits to survive in the vicious rural setting.”112

Human Rights Watch spoke with Vivek Pandit, head of the NGO Samarthan and an activist credited with securing registration of many cases in Maharashtra since 1991. Pandit has seen written instructions by state officials not to implement certain provisions of the Atrocities Act, particularly provisions related to physical abuse and land alienation.

In Maharashtra, the election campaign was run on a promise to repeal the act. They tried to withdraw 1,128 atrocities cases. Samarthan kept the pressure on. I personally presented the case before the National Commission for Scheduled Castes and Scheduled Tribes. But the state government’s resolution to repeal cases won’t do it. Each case has to go through formal proceedings. They are throwing smoke in the constituency’s eyes and saying that they are going to repeal it because of the “false cases” being registered. But there is not a single false case. We have the documents for each and every case. By saying that they are going to withdraw, they are sending the message to the police not to register the cases and that they are in favor of the upper castes.113

With the aim of eradicating “untouchability” and deterring the increased incidence of crimes against Dalits throughout the country, states should make a concerted effort to ensure full implementation of the Atrocities Act. Attempts to withdraw cases and delays in setting up special courts and appointing special prosecutors send the wrong message to implementing agencies and effectively subvert the stated aims of the act. Without immediate action, the Atrocities Act, like many other pieces of social welfare legislation, will remain a paper tiger.

India’s Obligations under International Law

The abuses documented in this report are in violation of the international human rights treaties outlined below. As a party to these treaties, India is obligated to comply with their provisions. The Committee on the Elimination of Racial Discrimination (CERD) and the Human Rights Committee (HRC), monitoring bodies under the United Nations International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights, respectively, have both expressed concern over the severe social discrimination still practiced against members of scheduled castes and scheduled tribes. Both committees have also recommended measures that can be taken to ameliorate the situation.114

International Convention on the Elimination of All Forms of Racial Discrimination, 1965

In the concluding observations of its forty-ninth session held in August 1996, as it reviewed India’s tenth to fourteenth periodic reports under the convention, the Committee on the Elimination of Racial Discrimination (CERD) affirmed that “the situation of Scheduled Castes and Scheduled Tribes falls within the scope of” the International Convention on the Elimination of All Forms of Racial Discrimination, 1965.115 Article 6 of the convention provides that state parties shall “assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”116

The committee added that the provisions of Article 6 are mandatory and that “the State party [should] continue to and strengthen its efforts to improve the effectiveness of measures aimed at guaranteeing to all groups of the population, and especially to the members of the Scheduled Castes and Scheduled Tribes, thefull enjoyment of their civil, cultural, economic, political and social rights, as mentioned in article 5 of the Convention.”117 It recommended that:

· special measures be taken by the authorities to prevent acts of discrimination towards persons belonging to the scheduled castes and tribes, and in the case where such acts have been committed, to conduct thorough investigations, to punish those found responsible and provide just and adequate reparation to the victims;

· a continuing campaign be undertaken to educate the Indian population on human rights, in line with India’s constitution and with universal human rights instruments, including the International Convention on the Elimination of All Forms of Racial Discrimination, and aimed at eliminating the institutionalized thinking of the high-caste and low-caste mentality;

· legal provisions be adopted to make it “easier for individuals to seek from the courts just and adequate reparation or satisfaction for any damage suffered as a result of acts of racial discrimination, including acts of discrimination based on belonging to caste or a tribe.”118

In July 1997 the sixtieth session of the Human Rights Committee considered India’s third periodic report submitted under Article 40 of the International Covenant on Civil and Political Rights (ICCPR). The committee made the following observations pertaining to caste:

The Committee notes with concern that, despite measures taken by the Government, members of scheduled castes and scheduled tribes, as well as the so-called backward classes and ethnic and national minorities continue to endure severe socialdiscrimination and to suffer disproportionately from many violations of their rights under the Covenant, inter alia, inter-caste violence, bonded labour and discrimination of all kinds. It regrets that the de facto perpetuation of the caste system entrenches social differences and contributes to these violations. While the Committee notes the efforts made by the State party to eradicate discrimination:

In addition to the violations outlined above, Articles 7, 9, 14, and 26 of the ICCPR are of particular relevance to the abuses documented in this report. Article 7 prohibits the use of torture, or cruel, inhuman or degrading treatment or punishment. The right to liberty and security of person is guaranteed by Article 9 and includes freedom from arbitrary arrest and detention, entitlement to a trial within a reasonable time or to release, and compensation for victims of unlawful arrest or detention. Illegal arrests and detentions are by definition “arbitrary”; such acts can also be arbitrary if not in conformity with international standards of human rights and procedural fairness, regardless of specific provisions of domestic law.

While noting India’s reservation to Article 9, the Human Rights Committee commented that this reservation, “does not exclude, inter alia, the obligation to comply with the requirement to inform promptly the person concerned of the reasons for his or her arrest.”

The committee also added that:

preventive detention is a restriction of liberty imposed as a response to the conduct of the individual concerned, that the decision as to continued detention must be considered as a determination falling within the meaning of article 14, paragraph 1, of the Covenant, and that proceedings to decide thecontinuation of detention must, therefore, comply with that provision. Therefore:

Finally, Article 26 of the ICCPR guarantees the right to equal protection before the law and prohibits discrimination on any ground including, among others, race, sex, religion, political or other opinion, social origin, birth, or other status.121

International Covenant on Economic, Social and Cultural Rights, 1966

Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides that state parties shall “recognize the right of everyone to the enjoyment of just and favorable conditions of work.” These include “fair wages and equal remuneration for work of equal value without distinction of any kind,” and “safe and healthy work conditions.”122

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 1984

Succumbing in part to pressure from domestic human rights NGOs and the National Human Rights Commission, India signed the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment on October 14, 1997. The provisions of the convention will become binding upon its ratification.

The convention defines torture as:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.123

Severe beatings of Dalit men and women by the police documented in this report fall well within this definition. Indian police routinely employ torture techniques in police stations, lock-ups, and detention centers throughout the country. The sexual abuse of women by state agents in a custodial setting amounts to torture if the agent uses force, the threat of force, or other means of coercion to compel a woman to engage in sexual intercourse.124 If the agent uses force or coercion to engage in sexual touching of prisoners, including aggressively squeezing, groping, or prodding women’s genitals or breasts, and the acts cause severe physical and mental suffering, that too would amount to torture.

Acts that do not rise to the level of torture or cruel or inhuman treatment may nevertheless be classified as degrading treatment, which is defined astreatment that causes or is intended to cause gross humiliation or an insult to a person’s dignity.125 The prohibition on degrading treatment also extends to the use of demeaning language where the employment of such language is intended to dehumanize and weaken an incarcerated person.126

Convention on the Rights of the Child, 1989, and Forced Labour Convention, 1930

Finally, the Convention on the Rights of the Child, 1989 (CRC) and the Forced Labour Convention, 1930 mandate protections that are particularly relevant for bonded laborers. Article 32 of CRC dictates that states parties recognize the “right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or... be harmful to the child’s health or physical, mental, spiritual, moral or social development.”127 Similarly, the International Labour Organisation (ILO) Forced Labour Convention requires signatories to “suppress the use of forced or compulsory labour in all its forms in the shortest period possible.”128 In 1957, the ILO explicitly incorporated debt bondage and serfdom within its definition of forced labor.129

52 See S. K. Singh, Bonded Labour and the Law (New Delhi: Deep and Deep Publications, 1994), pp. 48–51. 53 Hussainara v. State of Bihar, AIR 1979 SC 1369, 1377; Khatri v. State of Bihar, AIR 1981 SC 928; Suk Das v. Arunachal Pradesh, AIR 1986 SC 991; Ranchod v. State of Gujarat, AIR 1974 SC 1143. 54 The Bonded Labour System (Abolition) Act, 1976 was passed pursuant to this article. 55 Ministry of Welfare, Annual Report 1995-1996 (New Delhi: Government of India, 1996), p. 8. 56 Ibid. The provision of finances to members of scheduled castes and scheduled tribes for self-employment activities is administered through the National Scheduled Castes and Scheduled Tribes Finance and Development Corporation. 57 In the socio-economic context, the commission also has the responsibility of ensuring that scheduled caste development is taking place; it constantly monitors and reviews with state governments and ministries the implementation of their programs and policies. 58 The Protection of Civil Rights Act, 1955, Sec. 3, 4, 5, 6 and 7. 59 Since the promulgation of the Atrocities Act in 1989, the cell has shifted its focus to atrocities cases. 60 Human Rights Watch interview, Bombay, February 5, 1998. 61 Ibid. 62 The Atrocities Act has attracted similar accusations of misuse, including allegations that cases are filed simply as a means of collecting state compensation, as prescribed under the Prevention of Atrocities Rules, 1995, or to harass upper-caste members of rival political parties. The most widely “misused” provision, it is claimed, is the one concerning the use of derogatory language against Dalits. Critics of the act point to the high proportion of cases registered under this provision; human rights activists point to police refusal to register cases or solely registering cases under this provision, even when the crime reported is far more violent and severe (see below). In 1997 in the state of Uttar Pradesh, the Bharatiya Janata Party, known for its upper-caste base, called for repealing the legislation altogether on the claim that members of the lower-caste dominant Bahujan Samaj Party (BSP) had been instigated to file cases under the act against their upper-caste political opponents. The instigation, they claimed, came from then-Chief Minister Mayawati, a Dalit politician. “Left wants all-party meet on SC, ST Act,” The Hindu, September 25, 1997. Proponents of the act reacted by highlighting the deplorable situation of scheduled castes and scheduled tribes in the state and by criticizing any state government that took the position that “a Central [government] enactment on a sensitive subject such as the protection of SCs/STs should not be implemented with vigour [simply] to suit the political convenience of the ruling [BJP] party.” Madhav Godbole, “Making a mockery of the law,” The Hindu, October 21, 1997. See below for attempts to withdraw cases under the act en masse in the state of Maharashtra. 63 Human Rights Watch interview with T. K. Chaudary, Bombay, February 5, 1998. 64 Interview with Christodas Gandhi, Tamil Nadu Nodal Officer for the Atrocities Act, Madras, February 13, 1998. Gandhi has since been replaced as nodal officer.

65 Articles 17 and 46 of the constitution, on the abolishment of “untouchablility” and the promotion of educational and economic interests of scheduled castes, respectively, also become enforceable in courts of law through the enactment of the Atrocities Act. Vivek Pandit, “A Handbook on Prevention of Atrocities (Scheduled Castes and Scheduled Tribes),” A Vidhayak Sansad Publication, December 1995, p. 11.

66 The Supreme Court of India has held that the denial of anticipatory bail is constitutional.

67 Human Rights Watch interview with Christodas Gandhi, Madras, February 13, 1998.

68 Quoted in Navsarjan, “Atrocities on Dalits in Gujarat. One Document and its Evaluations,” (Ahmedabad: 1997).

69 Under a section titled “Corruption in Police,” the National Police Commission’s report published the following findings:
The scope of corruption and allied malpractices arise at several stages in the day to day working of the police. A few typical situations are listed below: (1) Bribe demanded and received for registering a case and proceeding with investigation. (2) Bribe connected with arrest or non-arrest of accused and release or non-release on bail... (4) Extorting money by threatening persons, particularly the ill-informed and weaker sections of society, with conduct of searches, arrests and prosecution in court on some charge or the other... (6) Fabricating false evidence during investigations of cases and implicating innocent persons or leaving out guilty persons on mala fide considerations... (12) Bribery at the stage of recruitment to police.
National Police Commission, “Corruption in Police,” Chapter XXII, Third Report of the National Police Commission (New Delhi: Government of India, 1980), p. 26.

70 Human Rights Watch interview with Vivek Pandit, director of NGO Samarthan, Usgaon, Maharashtra, January 29, 1998.

71 Human Rights Watch interview with H. Hanumanthappa, New Delhi, March 11, 1998.

72 Human Rights Watch interview with Chandra Bose, Sivagangal Monitoring and Vigilance Committee, Madurai, February 18, 1998.

73 Human Rights Watch interview, Madras, February 13, 1998.

74 Human Rights Watch interview with People’s Union for Civil Liberties, Madras, February 12, 1998. For more on monetary pressures on the police, see Chapter IV.

75 Human Rights Watch interview with Mr. Martin, Village Community Development Society, Madras, February 13, 1998.

76 P. D. Mathew, What You Should Know About the Police (New Delhi: Indian Social Institute, 1996), p. 24.

77 Ibid., p. 26.

78 Human Rights Watch interview, New Delhi, March 11, 1998.

79 Human Rights Watch interview with Dalit attorney, Madurai, February 16, 1998.

80 Radha Venkatesan, “Cells to protect SCs flounder in Tamil Nadu,” Indian Express (Bombay), June 15, 1997.

81 Ibid.

82 Ibid.

83 Human Rights Watch interview, Bombay, February 5, 1998.

84 Ibid.

85 Human Rights Watch interview, H. Hanumanthappa, New Delhi, March 11, 1998. See Chapter IX for caste and gender bias in the prosecution of rape cases.

86 Human Rights Watch interview with R. Balakrishnan, Madras, February 13, 1998.

87 Human Rights Watch interview with Bharathan, programme coordinator for Navjeevan Trust, Madurai district, Tamil Nadu, February 17, 1998.

88 For a description of TADA, see Chapter VIII.

89 Human Rights Watch interview with Sudha Ramalingam, People’s Union for Civil Liberties, Madras, February 12, 1998.

90 Human Rights Watch interview with Martin Macwan of Navsarjan, Ahmedabad, July 23, 1998.

91 Human Rights Watch interview with H. Hanumanthappa, New Delhi, March 11, 1998.

92 Human Rights Watch interview with Kandasamy Pandian, special court judge, Madurai district, Tamil Nadu, February 18, 1998.

93 Navsarjan, “Atrocities on Dalits...”. The study cross-checked police data with data from NGOs and the Social Welfare Ministry to calculate disparities in registration. Navsarjan also documented the time it took between reporting of incidents and ensuing police action. The average amount of elapsed time between registration of murder cases to police actionwas 121.2 hours, for rape cases, 532.9 hours.

94 Human Rights Watch interview with Martin Macwan, Ahmedabad, Gujarat, July 21, 1998.

95 61.56 percent of the increased atrocities were due to “social reasons”: “untouchability” practices and upper-caste reaction to Dalit attempts to share public resources and walk on public ways. Some 19 percent were land and labor-related disputes. Navsarjan, “Atrocities on Dalits...”.

96 Ibid.

97 Human Rights Watch interviews with investigating officers for the National Human Rights Commission, New Delhi, March 10, 1998; C. V. Shankar, director for the Adi Dravida Tribal Welfare Department, Government of Tamil Nadu, Madras, February 13, 1998; and T. K. Chaudary, Joint Commissioner of Police, Mumbai (Bombay) Police, Bombay, February 5, 1998.

98 Human Rights Watch interview with Martin Macwan, Navsarjan, Ahmedabad, Gujarat, July 21, 1998.

99 Ibid.

100 Navsarjan, “Atrocities on Dalits...”.

101 Ibid.

102 In February 1993, a Dalit kotwal (village guard) named Ambadas Savne took shelter against the wall of a temple. He was accosted by caste Hindus chanting inside the temple, who claimed that he had rendered the structure “unholy” by touching its walls. As summary punishment for his perceived transgression he was stoned to death at the temple’s footsteps. Human Rights Watch interview with Maharashtra activist who attempted to register Savne’s case under the Atrocities Act, New York, October 22, 1998.

103 “All cases under Atrocities Act being withdrawn,” The Times of India, September 20, 1995.

104 “A blunted weapon?” The Hindu, April 3, 1994.

105 Jyoti Punwani, “Govt. move defeats aim of Prevention of Atrocities Act,” The Times of India (Bombay), September 26, 1995.

106 Ibid. Marathwada is a region in eastern Maharashtra.

107 “All cases under Atrocities Act being withdrawn,” The Times of India, September 20, 1995.

108 Under the constitution, Parliament has the power to make laws for the whole of or any part of the territory of India (except Jammu and Kashmir), which state governments are then obligated to enforce.

109 Sumedha Raikar, “Huge backlog of cases of atrocities on Scheduled Castes, Scheduled Tribes,” Indian Express (Bombay), 1996.

110 Ibid. The article also reports that lack of government permission for the prosecution of public servants also blocks the trying of cases against them.

111 “A blunted weapon?” The Hindu, April 2, 1994, quoting a senior official familiar with civil rights cases.

112 Ibid., quoting NGO workers.

113 Human Rights Watch interview with Vivek Pandit, Bombay, January 29, 1998.

114 See also Chapter IX for a discussion of the Convention on the Elimination of All Forms of Discrimination against Women, 1979.

115 Consideration of Report by India to the Committee on the Elimination of Racial Discrimination, CERD/C/304/Add.13, September 17, 1996. See Appendix E for full text of the committee’s report.

116 International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969, Art. 6. India ratified the convention on December 3, 1968.

117 Consideration of Report by India to the Committee on the Elimination of Racial Discrimination, CERD/C/304/Add.13, September 17, 1996.

118 Ibid.

119 Consideration of Report by India to the Human Rights Committee, CCPR/C/79/Add.81, August 4, 1997. See Appendix F for full text of the committee’s report.

120 Ibid.

121 International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc A/6316 (1966) (entered into force March 23, 1976). India acceded to the convention on April 10, 1979.

122 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (entered into force January 3, 1976). India acceded to the convention on April 10, 1979.

123 United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, Part I, Article I (1).

124 In 1992 the U.N. Special Rapporteur on Torture noted, “Since it was clear that rape or other forms of sexual assault against women in detention were particularly ignominious violations of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture.” U.N. Doc. E/CN.4/1992/SR.21, para. 35. Report by the Special Rapporteur, P. Koojimans, appointed pursuant to Commission on Human Rights resolution 1985/33, U.N. Doc. E/CN.4/1986/15 (February 19, 1986), p. 29.

125 In the Greek Case, the European Commission on Human Rights defined degrading treatment as that which “grossly humiliates one before others or drives him to act against his will or conscience.” Greek Case, 1969 Yearbook of European Convention on Human Rights, p. 186 (1969).

126 Greek Case, 1969 Yearbook of European Convention on Human Rights, pp. 462-3 (1969). For more information on the applicability of the Torture Convention to custodial abuse of women, see Human Rights Watch/Women’s Rights Division, “Nowhere to Hide: Retaliation Against Women in Michigan State Prisons,” A Human Rights Watch Report, Vol. 10, No. 2 (G), September 1998, pp. 14-17.

127 Convention on the Rights of the Child, G.A. Res. 44/125, U.N. GAOR, 44th Session, Supp. No. 49, U.N. Doc. A/44/736 (1989) (entered into force September 2, 1990).

128 Forced Labour Convention (No. 29), 1930, adopted at Geneva, June 28, 1930, as modified by the Final Articles Revision Convention, adopted at Montreal, October 9, 1946.

129 International Labour Organisation, Conventions and Recommendations 1919-1966 (Geneva: ILO, 1966), p. 891. The ILO also passed the Abolition of Forced Labour Convention (No. 105) in 1957; India, however, chose not to sign this convention.

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