|
Your highness?
In Andhra, the story gets no better
Descent and work-based discrimination continues to circumscribe
Dalits’ access to and ownership of livelihood resources, occupational mobility
and opportunities for socio-economic development, relegating them to among the
poorest of the poor across the country. And while Dalits are becoming
increasingly aware of and asserting their fundamental rights – to justice,
non-discrimination and basic human dignity – a corresponding backlash is taking
place in terms of the increasing number of caste-based atrocities perpetrated by
the dominant castes.
Judgements Pronounced By Six Special Courts In Andhra Pradesh During 2002-02
|
S.No |
Reasons for Acquittal
|
No. of cases
|
Percentage
|
|
1. |
Not abused by
caste name at the time of offence |
110 |
38.9 |
|
2. |
Evidence not
corroborated |
40 |
14.1 |
|
3. |
Victim did not
identify the accused |
36 |
12.7 |
|
4. |
Offences
committed not on the ground of SC/ST |
30 |
10.6 |
|
5. |
Investigation
not done by competent authority |
28 |
9.9 |
|
6. |
Report not
given by the victim |
20 |
7.1 |
|
7. |
Not mentioned
caste in Complaint |
9 |
3.2 |
|
8. |
Medical
evidence not produced |
4 |
1.4 |
|
9. |
Victim died
during the trial |
3 |
1.1 |
|
10. |
Victim did not
belong to SC/ST |
3 |
1.1 |
|
11. |
Total
|
283 |
100 |
Source: Study on Special courts in
AP (Forthcoming), Sakshi
Most common alleged causes for atrocities:
The emerging trend is that increasingly atrocities against
Dalits are related to land, water, wages and other livelihood issues. Most of
the atrocities are committed when Dalits attempted to assert their right to,
Ø
Legal remedies
Ø Access to resources (land, water, livelihood)
Ø
Choice of occupation
Ø
Participation in the cultural life of the community
Ø
Vote
Ø
Self-dignity
Ø
Protest against victimisation of Dalits to satisfy superstitions beliefs of
dominant castes (witchcraft, human sacrifice).
A detailed study undertaken by SAKSHI, Andhra Pradesh, reveals
several grave issues related to the manner in which the judiciary itself looks
at the whole issue of caste crimes and finally pronounces judgements under the
Act.
If a Dalit victim is lucky enough to escape or overcome these
hurdles, to be one of the few cases that make it to the courts —
Offence-wise Judgements of High Courts on
SC/ST (POA) Act
|
S.No. |
Offence |
Judgements |
Total |
|
In favour of Dalits |
Against Dalits |
Modification of
Judgement |
|
1 |
Murder |
1
(4.8) |
5
(9.8) |
1
(16.7) |
7
(9.0) |
|
2 |
Rape |
2
(9.5) |
10
(19.6) |
1
(16.7) |
13
(16.6) |
|
3 |
Abuse |
6
(28.6) |
17
(33.3) |
2
(33.2) |
25
(32.1) |
|
4 |
Land issues |
1
(4.8) |
5
(9.8) |
- |
6
(7.7) |
|
5 |
Attack |
7
(33.3) |
8
(15.7) |
1
(16.7) |
16
(20.5) |
|
6 |
Harassment |
3
(14.2) |
3
(5.9) |
1
(16.7) |
7
(9.0) |
|
7 |
Not Mentioned |
1
(4.8) |
3
(5.9) |
- |
4
(5.1) |
|
|
Total (100%) |
21
(26.9) |
51
(65.4) |
6
(7.7) |
78
(100) |
i. Cases pending in lower courts
Ø Andhra Pradesh boasts of sessions courts in all districts
entrusted with the speedy trial of atrocity cases falling under the SC/ST (POA)
Act. And yet, the volume of atrocity cases does not match the judgement
outcomes flowing from these courts of justice.
Ø By 2003 there were 365 cases pending before special courts of
four AP districts. Given the increasing trend in the violations one can imagine
the volume of cases pending before lower courts.
ii. Convictions in lower courts
Ø As per the study of Sakshi 287 cases were acquitted out of 297
cases in which judgements were pronounced in lower courts during 2002-04. There
were convictions in only 4.7 per cent of the cases.
Ø
The conviction rate was relatively much higher in
the cases in which the trial was completed and judgement was pronounced in less
than a year (8.7 %) and it declined with increases in the duration of the trial.
The reasons for acquittals are follows:
Ø
Not abused by caste name at the time of offence
Ø
Evidence not corroborated
Ø
Victim did not identify the accused
Ø
Offences committed not on the ground of SC/ST
Ø
Investigation not done by competent authority
Ø
Report not given by the victim
Ø
Caste was not mentioned complaint
Ø
Medical evidence not produced
Ø
Victim died during the trial
Ø
Victim did not belong to SC/ST.
iii. Convictions in high courts
The same trend appears across the country when viewing high
court judgements on the SC/ST (POA) Act across the country:
Ø
Of the 78 high court judgements Sakshi analysed, the major offences being that
of rape, attack or caste abuse, 65.4 percent of cases saw judgements that went
against Dalits. Particularly where the prescribed maximum punishment was for
serious offences incurring over 10 years imprisonment, 75 percent of the cases
were decided against Dalits.
Ø
It is when one analyses the grounds for the judgements that judicial
misinterpretation of the spirit of the SC/ST (POA) Act emerges. While no
court has as yet upheld the fallacious argument that the Act is ultra vires or
contravenes fundamental rights under the Constitution, five major grounds
are utilised to justify judgements against Dalits :
Ø
Not granting bail violates Article 21 of the Constitution: Judicial
opinion as to the validity of sec. 18 SC/ST (POA) Act seems to be split,
with seven cases in favour and nine against granting of bail. What is the key
here is the legislative purpose for inclusion of such a provision, in
recognition of the nature of caste-based atrocities which will often provoke
retribution against Dalits where atrocity cases are filed. Hence, in no
circumstances where a prima facie case exists should a person charged with
offences under the Act be allowed out on bail. By ignoring this factor and
granting bail in favour of the dominant caste accused, the courts are wittingly
or unwittingly exposing Dalit victims to further threats, harassment or
violence.
Ø
Investigation not done by competent authority:
Nine out of the 11 cases where appeals were filed citing technical fault in
that the investigation of atrocities cases were not done by competent
authorities, namely the DSP or higher ranking officer as per Rule 7 SC/ST (POA)
Rules, ended in favour of the dominant caste accused being acquitted of the
charges. Hence, prima facie cases of atrocities are being dismissed unpunished
on the grounds of mere technicalities, which defeat the very purpose of the Act.
While the prescription of DSP or higher ranking officer was stipulated to ensure
proper and supposedly more fair investigation of atrocity cases, where by
mistake or design a lower ranking officer investigates an atrocity case, it
defeats the purpose of such protective legislation to allow the accused to
escape punishment on a mere technicality. Moreover, it amounts to punishing the
Dalit victim for a procedural error which is in fact the error of the government
machinery.
Ø
Special court has no jurisdiction to take cognisance of SC/ST cases:
Again, it defeats the very purpose of the Act to grant the Special Courts no
powers to directly take cognisance of SC/ST cases. The whole purpose of this
provision is to provide for speedy trials of atrocity cases to bring justice to
Dalit and Adivasi victims. However, by stating that all cases have to go through
a committal process from a magistrate to the special courts, not only is the
overburdened regular court system being stretched with this unnecessary
responsibility, but the efficacy and pace of special courts in disposing of
atrocity cases is slowed down. The fact that 12 out of 17 cases where this point
was mooted resulted in the cases being referred to the magistrates for committal
is evidence enough of unnecessary delays being imposed in the trial of atrocity
cases.
Ø
Crime not committed on the ground of being SC/ST: One of the greatest
fallacies in interpreting the SC/ST (POA) Act lies in the over-emphasis
on establishing that the atrocity took place on the ground that the
victim was a SC/ST. What judges overlook in this process is that the legislature
has already clarified that the term "atrocity" denotes an offence under the
Indian Penal Code committed against SCs and STs by persons belonging to
communities other than SCs or STs. The necessary mens rea is therefore
established with the offence itself and the communities to which both victim and
perpetrator respectively belong. It is not for the the court attempting to delve
into the very mind of the accused and discern to what extent the atrocity was
committed solely because the victim was a SC/ST.
Ø
Appreciation of the SC/ST (POA) Act by lower courts: The most
common ground for high court judgements was regarding appreciation of the Act by
lower courts, with 27 cases decided on this ground, 20 or 74.1 percent of which
resulted in judgements in favour of the dominant caste accused.
Analysis of Grounds for High Court
Judgements on SC/ST (POA) Act
|
S.No.
|
Ground
|
Judgements
|
Total
|
|
In favour of Dalits
|
Against Dalits
|
Modification of
Judgement * |
|
1 |
On the Ground of
Fundamental Rights |
3
(15.0) |
- |
- |
3
(3.8) |
|
2 |
Non-granting of bail
violates Article 21 Constitution |
7
(35.0) |
9
(17.0) |
- |
16
(20.5) |
|
3 |
Investigation not
done by competent authority |
2
(10.0) |
8
(15.1) |
1
(20.0) |
11
(14.1) |
|
4 |
Special Court has no
jurisdiction to take cognisance of SC/ST cases |
4
(20.0) |
12
(22.7) |
1
(20.0) |
17
(21.8) |
|
5 |
Appreciation of the
Act by lower courts |
4
(20.0) |
20
(37.7) |
3
(60.0) |
27
(34.7) |
|
6 |
Crime not committed
on the ground of being SC/ST |
- |
4
(7.5) |
- |
4
(5.1) |
|
|
Total (100%)
|
20
(100) |
53
(100) |
5
(100) |
78
(100) |
Modification of
Judgement means either an order for reinvestigation, a compromise or a reduction
of sentence.
Source: Dalit Human Right Monitor 2000-03, Sakshi
— TS
|
|
