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The SC/ST Act- Reduced To Yet Another Footnote In The Quest For Social Justice?

Ameyavikrama Thanvi & Mohini Priya
22 Nov 2020 2:37 PM GMT
The SC/ST Act- Reduced To Yet Another Footnote In The Quest For Social Justice?
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"A caste system gives us false comfort, makes us feel that the world is in order, that we automatically know the good guys from the bad guys."

Isabel Wilkerson

Siddharth, a young Hindu College graduate from Delhi moved to Bhojpur, a non-descript village about 500 km from Delhi, sometime in 1969-70. He was there to be a part of the communist movement, to ignite the revolution that would free the oppressed lower castes from the thakurs of the village. In his letter to his beau, Geeta, he describes a watershed moment of his work when some boys of the thakur raped a lower caste girl and the entire community was up in arms to avenge the rape. Armed with lathis and rifles they get hold of the thakur who nonchalantly accepts that his son did indeed rape the lower caste girl but questions if that should mean that he be killed for it. Enraged, as the villagers charge towards the thakur, he gets a heart attack; and the very same villagers get busy to provide him with medical assistance even sending for a doctor, who of course is also a lower-caste. Scared for his life, the thakur nevertheless accepts the doctor's services. Siddharth concludes his letter musing, "This strange compassion of the villagers towards their oppressor in his moment of need, taught me something. What? I am still trying to decipher." This was the decade of 1970s, as shown in "Hazaron Khwaishein Aisi".

The revolution that Siddharth dreamed of and worked for never came about; instead he was disillusioned and left India. Towards the end of the movie we once again see an exchange of letter from between Siddharth and Geeta where Geeta, now living and working in the same village, informs Siddharth that yes not much has changed but today no upper caste man can rape a lower caste girl and get away with it without getting a certain body-part chopped off.

Cut to 2020, Hathras, Balrampur and so many others. Dalit girls have been raped, brutally injured and killed by upper caste men. The law and order system has not only failed the victims but in at least one instance made a public statement that there was no rape. According to the National Crime Records Bureau's Report of 2019, there was an increase of 7.3% in crimes registered against scheduled castes from 2018 to 2019 and 7.6% of the total cases against scheduled castes constituted rape. There numbers must, most certainly, be less than actual incidence of crime, given the very low rate of reporting. Women, as a group, are highly susceptible to crime in India but Dalit women being placed at the lowest rung of caste hierarchies face far higher-level discrimination and targeted violence.

To stem the rising spectre of caste atrocities that the Government of India enacted the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter, the Act). The stated objective of the legislation being to provide for Special Courts for trial of such offences and for rehabilitation of victims of offences connected with caste-based atrocities. Notably, section 14 of the Act provides for establishing special court to provide speedy trial for offences under the Act. The Act also provides for appointment of a Special Public Prosecutor for the purpose of conducting cases in the said special court. Even though the Act empowers the Central Government to make rules for carrying out the purposes of this Act, section 21 mandates state governments to take necessary measures for effective implementation of the Act.

The law on paper is not insufficient to prevent caste-based atrocities. However, it is one thing to have a strong piece of legislation in place and quite another to ensure its effective implementation.

It has been over seven decades since untouchability was outlawed and three decades since caste-based atrocities were imputed criminal character. However, much is left wanting in ensuring the safety and dignity of lower castes in India of the 21st century. In fact, according to the annual report of the Ministry of Social Justice and Empowerment, Government of India, whereas there are 423 districts, exclusive courts as envisaged under the Act are only 170 (It must be noted, however, that the data available in the report is only for twelve states). Similarly, only five states seem to have set up special police stations under the Act. It is imperative to note here that according to the same Report, more than half the states and union territories have not established exclusive special courts provided for under the Act nor have they established special police stations.

Ironically, the primary enforcers of the Act i.e., the police who constitute the interface between the State and the larger society have in fact become the primary obstacles to its implementation. The Police has displayed a consistent unwillingness to register offences under the SC/ST Act. One of the main reasons that can be attributed to this is caste prejudice. Also, while under the IPC, charge-sheet for rape has to be filed within 90 days, the same under the SC/ST Act has to be filed within 60 days itself. Despite the more stringent timelines under the SC/ ST Act, in many cases, the police delay the process of filing the First Information Report (FIR) thus giving a breather to the perpetrators who in turn file counter FIRs against the Dalits. Using the counter FIR, the police enters into a negotiation with the Dalits and often this results in withdrawal of the complaint. Another dimension of the problem is that under the SC/ST Act, a rape victim is entitled to ₹5 lakh as compensation whereas for gang rape, the amount is ₹8.5 lakh. In contrast, for non-Dalits, compensation is offered on a case-to-case basis depending on the discretionary power of the judge. In practice, however, this beneficial provision has the undesirable effect of the police often bargaining with the victims for filing cases under SC/ST Act in lieu of the possible monetary compensation that may finally come the victim's way.

.The burden of ensuring proper implementation of the laws lies heavily upon the courts. However, when it comes to scheduled castes and their rights, a general disdain is palpable even in the language of the courts. For instance, the case of Vishakha & ors v. State of Rajasthan is known for the framing of guidelines to address sexual harassment at workplace. However, what is rarely reported is that the roots of that litigation lie in the rape of lower caste grassroot government worked, Bhanwari Devi.

Bhanwari Devi was a lower caste woman who was gang raped by members of a Gurjar family in retaliation of her having reported a child marriage being conducted by them. The trial was not only slow but saw a change of five judges. The court acquitted the accused while reasoning, "Rape is usually committed by teenagers, and since the accused are middle-aged and therefore respectable, they could not have committed the crime. An upper-caste man could not have defiled himself by raping a lower-caste woman." The fact that a court of law could make such an observation shows how deeply ingrained is the caste hierarchy in the Indian society. While Bhanwari Devi's rape still awaits punishment, a writ petition was filed on its basis and even the Supreme Court, failed to acknowledge the role that caste had played in the commission of the heinous crime.

The patterns of caste-based hierarchy and the violence associated with it continue to persist despite the constitutional and legal framework resolving to eliminate them. This contradiction is indicative of power structures which remain operational within and outside the existing legal framework continuously challenging and subverting it. Any analysis of the systemic failures in preventing caste-based violence necessarily has to factor in the sociological, political, economic dimensions of the problem as well. It is only by adopting a holistic approach that the challenge of caste-based oppression can be overcome and the constitutional promise of attaining an egalitarian society can be delivered. It is imperative that the legislations enacted for this purpose be applied not just in letter but in spirit as well. While steps must be taken to set up special courts and police stations provided for under the Act, effort needs to be made to establish a fast track case disposal system. Justice delayed is justice denied and the case of Bhanwari Devi stands as a glaring testimony to it.

To genuinely dismantle the caste-system and the inequities emerging from it are to be dismantled, besides politico-legal measures, steps need to be taken by the society, at large, to ensure equal representation of the so-called lower castes, particularly, women in all spheres or public life. As Frances Wright said, "Equality is the sole of liberty; there is, in fact, no liberty without it."

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