Caste Atrocities in India: Time to Review the PoA Act, 1989

The constitutional commitment of equality, liberty, justice and dignity to all Indian citizens is the expression of our vision of building a nation without any discrimination including deep-rooted discrimination based on caste. In the past 68 years of independence, this commitment made in the Preamble has been translated into action through various public policies to abolish discrimination. Yet caste discrimination remains a widespread phenomenon throughout India. The cruelest outcome of caste discrimination against Dalits and Adivasis is the physical violence against them by socially advantaged caste groups in India. Recognizing such crimes and vulnerability of Dalits and Adivasis, the government of India enacted ‘The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act’ in 1989 (PoA Act) to deter such violence and ensure justice and protection to them. However, its implementation remains very weak and the vulnerability of SCs and STs has barely improved. Dalit rights organizations and various other public institutions indicated towards non-implementation of the law, in-effectiveness of law to deter commonly committed caste base atrocities, lack of statutory arrangements in the states, corruption in police system and influence of caste system in public institutions. Considering all these loopholes in the Act, it has been demanded by various stakeholders to amend this law in order to ensure higher protection of victims and prevent caste-based atrocities. UPA-II government in the end of its tenure brought an ordinance to amend the PoA Act in March 2014. The newly formed NDA government introduced ‘The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014 in the Lok Sabha to replace the ordinance. 

The Scheduled Castes (Dalits) and Scheduled Tribes (Adivasis) together accounts around one fourth of Indian population. Caste system deprives this entire section of population from enjoying a life as it is articulated in the Preamble of the Indian Constitution. Practices of the caste system such as untouchability and discrimination many times lead to the gross physical atrocities. The literature on atrocities shows that it is an all-India phenomenon legitimized by same principle of caste hierarchy. Government of India enacted The Untouchability (Offences) Act in 1955 to abolish practices of untouchability and protect rights of individual. Even after this legislative mechanism, frequency of atrocities against Dalits and Adivasis remain unchanged. Under the pressure from Dalit Members of Parliament (MPs), the Government of India started monitoring atrocities against SCs from 1974 and in the case of STs from 1981 onwards, with special focus on murder, rape, arson and grievous hurt.

The caste system is so deeply rooted in Indian society that mere monitoring of atrocities and enacting a law to abolish untouchability did not result into betterment of Adivasis and Dalits. The socially and culturally legitimized caste system leads to the complex manifestations such as discrimination, untouchability, atrocity on vulnerable sections of the society. The enactment of PoA Act in 1989 as a special law recognized complexity of caste base atrocities and higher vulnerability of victims. This special law treats various IPC and other offences against STs and SCs by any non ST and SC member in a different manner. It prescribes stronger punishment and provides protection to the victims. The Act states that, “despite various measures to improve the socio-economic conditions of SCs and STs, they remain vulnerable. They are denied a number of civil rights; they are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious atrocities are committed against them for various historical, social and economic reasons .”

Implementation of the Act

During two decades of its implementation the PoA Act ensured justice, protection and rehabilitation for thousands of victims of caste atrocities. . It also helped to generate awareness around basic human rights. Dalits and Adivasis have utilized this law to assert their rights and due share in society. However, various obstacles have been identified in its smooth implementation and delivering justice to the victims. According to a NHRC report on Status of Implementation of SCs and STs (Prevention of Atrocities) Act, 1989, police resort to various machinations to discourage SCs/STs from registering cases, to dilute the seriousness of the violence and to shield the accused persons from arrest and prosecution. FIRs are often registered under the Protection of Civil Right Act and IPC provision, which attract lesser punishment than PoA Act provision for the same offence.

The National Coalition for Strengthening SC & ST Prevention of Atrocity Act (a network of civil society organization and Dalit activists) identified following major deficiencies of the Act and its implementation :

·         Under reporting of the cases under the Act and deterred from making complaints of atrocities.

·         Deliberately not registering cases under appropriate sections of the Act.

·         Delay in filing charge sheet

·         Not arresting accused and the ones who are arrested are invariably released on bail.

·         Filing false and counter cases against Dalit victims by accused.

·         Compensation prescribed under the Act 16 is invariably not paid.

·         Victims have no access to legal aid.

·         Non-implementation of statutory provisions in various States under the Act and Rule, 1995.

According to the data of Ministry of Social Justice and Empowerment, majority of states do not fulfill minimum statutory provisions as per the Act, 1989 and Rules, 1995. Following table shows the status of non-implementation of the provisions of SCs and STs (PoA) Act, 1989 and Rules 1995 by State Governments. 

Although there is provision in the PoA Act for the constitution of Special Courts to expeditiously try atrocity cases, in reality what SCs/STs experience is a huge pendency of their cases before the trial courts. Moreover, the conviction rate is very low. In fact, the conviction rate under the PoA Act is found to be much lower than in cases booked under IPC. According to the NCRB data, in 2013 the average conviction rate for crimes against Scheduled Castes and Scheduled Tribes stood at 23.8% and 16.4% respectively as compared to overall conviction rate of 40.2% relating to IPC cases and 90.9% relating to SLL (Special and Local Law) cases. The processing of reported cases for investigation and trail is very slow.  According to the NCRB data, 35645 cases are pending in different courts for trial. Large numbers of cases are pending in States such as Uttar Pradesh, Bihar, Odisha, Gujarat and Karnataka.

The National Advisory Council (NAC) during UPA government reviewed the provisions of law and cases of atrocities and found that certain forms of atrocities, though well documented, are not covered by the Act. NAC recommended for the incorporation of various IPC offences and other commonly committed offences under the perview of this law to ensure wider protection to the victims of caste atrocities. The National Commission for Scheduled Castes (NCSC) and Justice Punnaiah Commission critically examined deficiencies of the Act and has suggested various amendments to the Act. Human rights organizations have also highlighted various gaps in the enforcement of the Act and Rules. Ministry of Social Justice and Empowerment and Ministry of Home Affairs have issued various advisories to State governments to fill the gaps in the enforcement.

Status of Atrocities:

The National Crime Record Bureau (NCRB) data further exposes the poor implementation of the Act and its minimal impact in effectively dealing with caste based atrocities. The data reveals that the number and frequency of crime against SCs and STs are continuously increasing. The prevalent atrocities against SCs and STs includes incidents such as making SCs eat human excreta, and subjecting both SCs and STs to physical assaults, grievous hurt, arson, mass killings and rapes of SC/ST women, etc. Although the National Crime Records Bureau (NCRB) provides useful data that reveal the extent of atrocities committed against the SCs/STs, these data do not fully reflect the ground reality as most of the cases go unreported due to reluctance by police to register atrocity cases for various reasons. One also finds caste bias and corruption among the police force preventing registration and investigation of cases.

Even after low rate of reporting of crime under PoA Act, incidences of crime under this Act has increased from 11602 incidences in 2008 to 13975 incidences in 2013. The incidences of rape have shockingly increased from 1457 in 2008 to 2073 in 2013 (an increase of 42.27%).  There has been no mitigation with annual average of crimes registered against SCs/ST standing at 39408 and daily average being 108.

Proposed Amendments in PoA Act, 1989:

The literature and empirical data on caste atrocities reveals that it made nominal impact in the lives of SCs and STs. However, various assessment of the law reveals that it has created a sense of security and protection among the victims of the caste atrocity. Dalit and Adivasi victims have used it as a tool to assert their basic rights and combat with wrong social and cultural practices. The current situation of atrocities and status of cases pending in police station and in courts led stakeholder to advocate for amendment in the PoA Act, 1989.

The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014 introduced in the Lok Sabha on July 16, 2014 that replaces ordinance enacted by UPA government in March 2014 represents the consensus  of stakeholders to amend the law for better results.

The amendment Bill proposes substantial changes in the chapter on ‘Offences of Atrocities’ (Chapter-II) of the Principal Act. The proposed amendments attempts to increase number of IPC offences under the preview of this act. It also recognizes commonly practiced action in society to insult and harm dignity of person from SC and ST community as an offence. These offences are garlanding with footwear, compelling to dispose or carry human or animal carcasses, manual scavenging, attempting to promote feeling of ill-will against SCs or STs, imposing or threatening a social or economic boycott. The amendments in this chapter further specify duties of public servant in detail and prescribe punishment in case of any neglect of duty by the public servant. The common duties of public servant includes registration of FIR, furnishing a copy of information recorded by the informant in police station, to record statements of victims or witnesses, conduct investigation, file charge sheet within six days and keep records of document.

Addressing issue of long pendency of cases and low conviction rate under the Act, the amendment Bill proposes constitution of Exclusive Special Court and Special Courts to dispose cases within given time-frame. The provision in the bill ensures adequate number of courts so that every case can be disposed within the period of two months from the date of filling of the charge sheet.  The bill has inserted a new chapter namely ‘Chapter IVA’ in the principal Act, that describes the rights of victims and witnesses in detail. Some of the crucial rights of victims and witnesses are as follows:

·   Right of victims, their dependents and witnesses to access state’s support for their protection against any kind of violence, threats, coercion, inducement and intimidation. 

·   Right of victims to access special support from government, that arises because of their age, gender, educational disadvantage and poverty.

·  Right of hearing views of victims at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused.

·  Right of victims, their dependents, informants and witnesses to access facilities of relocation, rehabilitation and maintenance during investigation, inquiry and trail of the case.

·  Right to access information about trial, enquiry and trial such as recorded FIR and provision of laws and allied schemes of relief for victims, their relatives.

·     Right to access relief in cash or kind.

·    Right of atrocity victims and their dependents to take assistance from Non-Government Organizations, social workers and advocates.

Soon after the introduction of the amendment Bill in the Parliament, the Lok Sabha Speaker referred the Bill to the Parliamentary standing committee for further deliberation.

Conclusion:

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014 introduced in budget session 2014-15 replaces ordinance brought in by UPA-II government in March 2014. The proposed amendments in the principal act comprehensively addresses issues of non-implementation, in-effectiveness and number of loopholes in the existing law as highlighted by various human rights organizations, Dalit activists and public institutions. The amendments in the Act will ensure wider protection and timely justice to the victims of caste atrocities. It has already been delayed for so many reasons, but now it is up to the Parliament and political parties to understand the urgency of the amendment Bill to provide relief to the SCs and STs who constitute almost one forth of Indian population.

 

Jeet Singh

 

If He Rapes Like an Adult He Should be Punished Like an Adult: why the mentality around the new juvenile law needs a serious rethinking

The Union Cabinet on August 6, 2014 cleared the Juvenile Justice (Care and Protection of Children) Bill, 2014

Photo Source: The Alternative

that gives powers to the Juvenile Justice Board to decide if a juvenile above 16 years, involved in heinous crimes like rape, would be tried in an adult court. The Bill comes in at a time when there has been public outrage over the fact that the minor convicted in the Nirbhaya gang-rape case was handed a three-year term in a reform home by the Juvenile Justice Board.

The public has been made to believe by media and certain sections of the political leadership that the juvenile was the most brutal and indeed responsible for Nirbhaya’s death. However, the facts in this case have been completely overshadowed by false media reporting and backed by a political agenda that seeks to encash on misdirected public anger.

The juvenile justice board in its confidential order on August 31, 2013 deprecated the "media hype" over the minor's role in the said case. The board's order made it clear that in their testimonies, neither Nirbhaya nor her male friend singled out the juvenile as the person who had brutally assaulted her with a rod, resulting in an injury that led to her death within a fortnight. In fact the board asserted that the juvenile himself had been "brutalized" by the media portrayal of him as the most brutal assailant of Nirbhaya.

Not surprisingly, neither the media nor political leaders are in a haste to take the correct facts to the public. The media in fact has taken very few steps to rectify its stance.

It is also imperative to make it clear that even in cases where a juvenile commits a crime which is identical to an adult crime, he/she cannot be treated in the same manner as an adult.

 To quote eminent neuroscientist Laurence Steinberg, “I have argued that adolescents should be viewed as inherently less responsible than adults, and should be punished less harshly than adults, even when the crimes they are convicted of are identical”.

Simply because a 17 year old looks and acts like an adult, he should not be penalized in the adult criminal system. Physical changes coupled with adult actions and mental maturity to regulate those actions are two different things. Also, contrary to public opinion, a boy who is 17 years and 11 months old is not as mature as an adult. As neuroscience and psychology explain the structural and functional changes that occur during adolescence do not all take place at a uniform pace.

 There are many who argue that drawing a line at 18 years is also treading along a slippery slope as the brain is in development stages till the age of 25. However, if at all a line is to be drawn it is better to keep 18 as the age at which we consider an individual to be an adult. An individual in India who is 17 years and 364 days would not be given the right to vote, and similarly should not be tried under the adult criminal system.

While the public is baying for “strong action”, theirs is an emotional reaction. That the law makers are giving into these emotions by enacting an ill fitted new law, is a step that is regressive and ill conceived. India moved from penal law to reformative law by repealing the 1989 juvenile law and enacting the Juvenile Justice (Care and Protection) Act 2000. By enacting the new law, we will victimize juveniles who could not be ‘cared for and protected by’ their families, the society and the government system.

 

 

Divashri Mathur

Gender Knowledge as important as General Knowledge

The Academic Congress on Understanding Gender held at Lady Shri Ram College for Women from March 5-7, 2014 proved that in today’s age “gender knowledge” is as important as general knowledge. The three day event probed into Questions of Justice and Freedom and gave a gendered analysis of the present context. The Congress brought together experts and activist in an attempt to have an enriching discussion around women’s issues and included the interconnected themes of law, media, voice, marginalization, sexuality and the rise of the free-spirited woman in an era of backlash and conflicting choices. What set the LSR event apart from the norm was that gender was located within the larger context of rights and freedom for all aimed at humanizing women. The following snippets give a glimpse of Day 2 (March 6) of the event:

The morning session included a panel discussion on Gender and Marginalized Voices supported by UN Women. Gopal Guru, Anand Patwardhan and Vimal Thorat led a discussion on the intersection between gender, caste and religion. The question of dalit politics and caste were discussed. The speakers clarified that while gender is linked to caste, the women’s movement has not contributed substantially to the caste debates in India that emerged in the post-Mandal era. It was also pointed out that in the current scenario; violence against women (VAW) in rural India and violence against dalit/ Northeastern women tends to get less attention as compared to VAW in urban India. In this context the role of media and selective reporting was debated.

The panel discussion was followed by a conversation with women who exemplify empowerment and breaking the glass ceiling.  

The first speaker was Baby Haldar who narrated her inspiring life story. Baby works as a domestic worker and is an author, whose autobiography Aalo Aandhari describes her harsh life growing up and as a domestic worker and has been translated into several languages.

Baby’s struggle began at a very young age. She was raised by an abusive father: an ex-serviceman and driver and her step-mother in West Bengal and was only 12, when her father married her off to a man 14 years older than her. Finally in 1999, at the age of 25, after years of domestic violence, she left her husband and came to Delhi with her children. Urvashi Butalia, who Baby considers to be her mentor, told the audience that when a woman like Baby decides to speak up, her story will invariably give many others courage and start a revolution of courage and strength.

Sunita, India’s first female auto driver and the two cab drivers from Sakha (Saroj, Lalita) shared how a woman driving on the streets reassures people- women, children, families, whereas, a man doing the same would give rise to fear in certain circumstances and yet women do not take up similar occupations. They hope that their work will inspire more women to challenge the norm and step out of their homes. Meenu Vadhera, Director of Sakha cabs shared how mobility is a very important tool in the struggle for women’s empowerment.

The afternoon session began with a Lecture by Mary E. John from CWDS. Ms. John spoke on ‘Gendering Violence: Rethinking Sexuality and Violence’. She traced the discourse on gender violence and outlined how while the movement on VAW began in the 1970s, it wasn’t till the 1990s that the language of sexuality emerged. She said that the 2000’s saw a very rapid shift as women now articulated sexuality through means such as the ‘pink chaddi campaign’ and ‘slut walk’ which not only challenged gender stereotypes but also led to a backlash.

She said that the gang rape of Nirbhaya was a ‘genuine event’ that marked another shift in the gender discourse. Although, several cases in the past like Mathura rape case, Ramiza B. case, Bhanwari Devi case had also led to protest and outrage, what was different about Nirbhaya was that the protests didn’t originate only from the women’s group and were not restricted to only women. The rape also changed the direction of the discourse as the ire of the public turned towards the state and ‘demanded’ better laws and safer cities. She said that the placards she read during the protest had slogans such as ‘Meri skirt se uchi meri awaaz’, ‘my dress is not a yes’ carried by both men and women and was an indication of the change being brought on by the event.

What she found discomforting about the December rape is that the incident has reinforced the false stereotype of the danger lying outside the house. She showed with the help of NCRB data that in more than 97% of the cases, the victim is known to the accused. She said that it was in this context that the backlash of violence against women was disturbing and needs to be challenged. The advancing of women’s hostel deadlines, canceling night shifts for female employees, parents refusing to let their daughters to go out after dark are just some of the obvious ways in which the backlash works. More subtle ways exist and impact our daily life, making women fearful, breeding mistrust and straining relationships between the sexes.

The discussion led to a debate about gender roles and how while women are now juggling work within and outside the house, the roles of men continue to be static. The rising expectations from women often lead to them having to make a choice between two worlds and the need to challenge this stereotype.

The session also included the screening of ‘Safe City Dialogues’ by Shikha Trivedi from NDTV. Safe City Dialogues is a short documentary which captures the urgent need for city plans to have a gendered perspective. It looked at the lives of young women in slums of Mumbai and how they struggle for access to basic sanitation. The slums are poorly lit, suffer due to a shortage of public washrooms and other amenities and the streets are congested along with poor garbage and human/ animal waste disposal. The documentary explored how women become victims of both, poor planning and violence against women. The documentary recorded lives of young women living in these slums and questioned whether their voice was ever taken into consideration while planning cities? It raised questions such as ‘are technological and safety measures the solution to build a safe society or do we need to initiate a dialogue to heighten gender sensitivity’? 

The day concluded with an interaction with Bhanwari Devi from Rajasthan. Bhanwari Devi worked as a ‘Sathin’ in Rajasthan and was part of the Women's Development Project (WDP) run by the Government of Rajasthan. She belongs to the ‘kumhar’ (potter) caste and her village is dominated by the upper caste Gujjar community. Her training as a Sathin enabled her to raise her voice and take a stand against child marriage happening in a rich Gujjar family in her village in the early 1990s.

Bhanwari narrated how despite her protest, the marriage of the two girl children did take place, with the police attending the wedding celebrations.  Yet, the men from the Gujjar community felt insulted and in a bid to take ‘revenge’, gang raped her. Bhanwari then had to struggle to get herself examined medically in order to register a FIR. Yet, Bhanwari refused to give up. She fought for her justice and continues to do so. Her case at the moment is pending with the High Court.

Ms. Kavita Srivastava translated Bhanwri’s narrative for the audience. Speaking of Bhanwari’s struggle, she said that the reason why Bhanwari’s initial FIR was not entertained initially was because of patriarchy. She said that the police, medical examiners, Magistrate and all others in authority did not believe Bhanwari because they bought into the patriarchal stereotypes of:

1)       Old woman are not raped
2)       Old men do not rape
3)       Upper caste men would not want to have physical relations with a low caste woman

It is this thinking that got challenged when Bhanwari refused to stay quiet about her rape. She decided to persist for justice and continues to do so, despite all the obstacles that have come her way. While the accused were released on bail, Bhanwari’s struggle led to the Vishakha Judgement which became the foundation for the Sexual Harassment Act passed in 2013.

Bhanwari’s struggle, according to Ms. Srivastava shows that people need to stop looking at women’s bodies in the framework of shame and honour. If women continue to think that way, they will feel victimized, but if they decide to step out of the mould they will identify themselves, as Bhanwari does, as a survivor. This concluded the final session of the second day of the Gender Congress.

The overall theme of the “Genderknowledge” held at LSR made the audience pause and reflect upon why gender is so important today. It highlighted that gender doesn’t only concern women; rather questions of women’s safety, greater mobility, freedom of occupation, the struggle for rights are reflection of our society and therefore concern us all. As the day concluded, questions regarding what is and what is not acceptable to women today, gender roles, family as a unit of safety and many others sprang up, leading to an internal debate and change of thought, both for the audience and the participants.

Divashri Mathur

Voicing violence: Has the new Act made a difference?

Photo Source: www.indiatimes.com
 

A 16-year-old girl in Kolkata was gang raped twice in October, the second time immediately after she registered an FIR with the police. The rape of the minor is an example of how despite the passage of a stringent Act against sexual crimes and a promise of providing an environment of greater safety for women to speak against violence, not much has changed in actual terms.

The Criminal Law Amendment Act that came into existence in March 2013 amended various sections of the Indian Penal Code (IPC), the Code of Criminal Procedure and the Indian Evidence Act, with an aim of providing a strong deterrent against crimes like rapes. The Act inserted Section 166 A in the IPC which provides for rigorous punishment up to 2 years for public servants disregarding directions while investigating rape. In addition, the Protection of Children from Sexual Offences (POCSO) Act was also strengthened. POCSO envisions police as child protectors. Under it, the police is required to make arrangements for the care and protection of a child who has been sexually abused.

However, these provisions did nothing to save the Kolkata rape victim. In fact, her registering the FIR and then pursuing it led the culprits to allegedly burning her alive. According to the Justice Varma Committee report that guided the fast track passage of the Criminal Law Amendment Act, “Failure of good governance is the obvious root cause for the current unsafe environment eroding the rule of law, and not the want of needed legislation”. The report also warned that in the absence of “attitudinal changes”, mere changes in law cannot correct the gender bias that plagues Indian society.

Statistics justify the observations of the committee. A year after the Act came to function; rape and other crimes against women have increased, rather than decreased. Delhi alone has seen a 129% increase in rape. Compared to 2012 when 680 cases were registered, 2013 saw 1559 registered cases.

A victim who speaks out against rape not only requires legal protection, but also support from society. However, the mindsets of people are largely unchanged. Many, including those in authority, continue to believe that women ‘invite’ rape by dressing in a certain way, stepping outside their homes after a certain hour or visiting certain places. The question then becomes if change in legal procedures can bring about reform in society?

There are differing views on this among activists; some like Dr. Nandita Shah, co- Director Akshara asserts that some changes are definitely visible. While the judicial, medical and police structures are still inadequate, what has changed since the passage of the law is that it has broadened the definition of rape which she views as a positive change. “Earlier traumatic experiences of sexual assault would make a victim feel stigmatized, but now with the broadening of rape to include non-penetrative assault, such victims are encouraged to speak out and seek justice”. She points out to the Tehelka case where the journalist pointedly referred to the new law while seeking a trial for rape.

Others like Kavita Srivastava, National Secretary; People's Union for Civil Liberties (PUCL)feel that while Criminal Law Amendment Act was welcomed as changes relating to criminal law and sexual violence came after 31 years, there is still a long way to go before the law achieves its stated purpose. “We welcomed the processes (behind the law) as it was demanded from the streets and the Verma committee report was extremely participatory. However, nine months since it has been implemented, it is clear that the police still does not know the new law. Though some trainings have been conducted, it will take a long time for the Thana level police to know the sections and in particular the application of the Law. Lay persons and survivors of violence are even further removed from knowing the changes and therefore do not directly feel empowered. Unless the attitude of the police changes, the law will be a change agent only on paper”. 

 A year has passed since the Delhi gang rape shook the collective conscience of the country. While a larger discussion on women’s safety continues to be kept alive by media, activists and academia, there seems little impact of the Criminal Law Amendment Act on the lives of women sufferers of sexual violence. Though, the new Act addresses sexual crimes committed by those in position of authority, often, police medical practitioners, advocates, even judges make voicing violence more difficult for women, rather than encouraging them. For one, court processes and police procedures need quick adaptation to the changes in law and then implement them. If mere change in law equated changed attitudes, then the police would have ensured protection of the minor in Kolkata by sending her to a shelter and prevented her death.  Further, while change in law may serve as a first step, there remains a need to spread awareness to create an environment of sensitive support, so that the law benefits women both in letter and in spirit.

 

-Divashri Mathur