NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

HUMAN RIGHTSProject on

Human rights violation involving SC/ST in the light of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989

TRIMESTER-VII

SUBMITTED TO submitted by Deepak Kaneriya 2012BALLAB 76 Prof. Uday Pratap SinghProfessor in Human Rights

Index1. Introduction052. Measure to ensure non-discrimination063. SC/ST prevention of atrocities act, 1989.084. International standard applicable to India.115. Conclusion...166. Bibliography.17

index of authorities

Cases Abdul Rashid Khan (Dead) & Ors. V. P.A.K.A. Shahul Hamid & Ors., (2000) 10 SCC 636)11Dr. Ram Krishna Balothia v. Union of India, AIR 1994 MP 1437, 8Gajraj Singh Tomar V. State & Ors, Crl.M.C.No.4024/200810M.C. Prasannan v. State , MANU/WB/0072/19998Masumsha Hasanasha Musalman V. State Of Maharashtra, AIR 2000 SC 187610state of karnatka v.ingle (1992) 3 S.C.R. 2849West Bengal State Electricity Board V. Dilip Kumar Ray, AIR 2007 SC 976 ,10Constitutional ProvisionsArticle 15 of the Constitution of india5ArticlesInterview of T.K Chaudhry (DGP) by Human right watch,bombay, feb 5,19987Report card 20 Years Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, National Coalition for Strengthening SCs & STs (Prevention of Atrocities) Act, april 20108Sakshi, Dalit Human Rights Monitor-2000, Andhra Pradesh, P. 15210BooksAMBEDKAR.B.R. & RODURIGUES AND VALERIAN, THE ESSENTIAL WRITINGS OF B.R.AMBEDKAR, Oxford University presses (New Delhi).3GHUMAN PAUL, BRITISH UNTOUCHABLE: A STUDY OF DALIT IDENTITY AND EDUCATION,P-4, Ashgate Publishing,Ltd.20133Jacob. T. G, Reflections on the Caste Question:An Overview of Tamil Nadu, Karnataka & Keralam, NESA Publication, 20006Narula Smita , Broken People: Caste Violence Against India's "untouchables", Human Rights Watch, 19997NARULA SMITA, BROKEN PEOPLE: CASTE VIOLENCE AGAINST INDIAS UNTOUCHABLE, P.291,Human Right Watch ,19993Parliamentary Committee on the Welfare of SCs & STs, 4th Report 2004-05, New Delhi, 2005, para 1.28PILLAI, V. KANNU, CASTE VIOLENCE IN TAMIL NADU: a sociological analysis,p.55, Centre for Developing Society, 20066

conference

South Asian Society of Criminology and Victimology. International Conference, Nati Ron'el, First International Conference Of The South Asian Society [Of] Criminology And Victimology (SASCV), 15-17 January 2011, Jaipur, Rajasthan, India: SASCV 2011 : Conference Proceedings8ReportsNational Commission for SCs, First Report 2004-05, New Delhi, 2006, pp.222-37NHRC, Reporton Prevention of Atrocities against SCs, New Delhi, 2002, pp.14-15)7

IntroductionIndia achieved its independence in 1947 but freedom was not for the all section of society rather its was for the people who were always free I.e. upper caste people not for servile caste.[footnoteRef:2] [2: AMBEDKAR.B.R. & RODURIGUES AND VALERIAN, THE ESSENTIAL WRITINGS OF B.R.AMBEDKAR, Oxford University presses (New Delhi). ]

Who are untouchable / schedule casteIndian society is stratified into hierarchy based on the caste and its certainly the world longest social hierarchy. Caste is a defining feature of Hindusism which laid down a complex ordering of social group on the basis ritual purity.[footnoteRef:3] The untouchable of India had witnessed centuries of exclusion, humiliation, discrimination, and indeed dehumanization from people of upper caste. In fact they were treated worse than that of African American in the United States because they were denied the basic human rights in their own country.[footnoteRef:4] [3: NARULA SMITA, BROKEN PEOPLE: CASTE VIOLENCE AGAINST INDIAS UNTOUCHABLE, P.291,Human Right Watch ,1999] [4: GHUMAN PAUL, BRITISH UNTOUCHABLE: A STUDY OF DALIT IDENTITY AND EDUCATION,P-4, Ashgate Publishing,Ltd.2013]

In 1997 a report by national commission for SC/ST underscored what is un-touchability as the imposition of social disabilities on person by reason of their birth in certain caste.[footnoteRef:5] Constitution of India though provides protection[footnoteRef:6] and safeguards to member of scheduled caste under its various articles. Theses safeguards are in very nature of protective from discrimination for their educational, economic, social, political and reservation benefits and for overall development. [5: Ibid. ] [6: Article 15,17 23,24 and 25(2)(b)]

Measure to ensure non-discriminationThe Indian Constitution[footnoteRef:7] laid down that no citizen shall be subjected to any disability or restriction on the grounds of religion, race, caste, sex or place of birth. It ensures that every citizen should get equal status and opportunity .The problems of social inequality and caste divide in a country like India with heterogeneous groups and sub-groups needs to be recognised and resolved by all available democratic measures including special legislations to deal with particular acts constituting offences against such weaker sections of the society. Scheduled Castes' and `Scheduled Tribes' are two such identified social groups. Article 46 of the constitution of India expressly provides that the State shall promote the educational and economic upliftment of the weaker sections of the society, in particular of SCs & STs with special care and shall protect them from injustice and all forms of exploitation. [7: Article 15]

Legal rightsSpecial social enactments have come into force from time to time for SCs and STs in order to uphold the constitutional mandate and safeguard the interests of this section of the society.The major legal enactments at the national level are:(i) Protection of Civil Rights Act, 1955(Formerly known as Untouchability (Offences) Act, 1955.(ii) Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989.[footnoteRef:8] [8: Hereinafter refer as POA.]

Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989.Introduction:

First we have to look into the incidents which led to the formation of POA.the post independence era was marked by frequent instance of atrocities spring across the country.for example the assignation of the young, educated Dalit leader Emmanuel Sekaran in Tamilnadu,[footnoteRef:9] kilavenmani massacre of 42 dalit in 1968whic was in some or other way was a caste holucaust.[footnoteRef:10] Atrocities continued to rise with ferocity example such as bihar massacre, killing of Dalit in Madhya Pradesh in Mandsaur district. At this level all such case led to the demand from state as well national level to protect the vulnerable section of society. Under continued pressure from Dalit MPs and political leaders, the magnitude and gravity of the problem was finally recognized by Prime Minister Rajiv Gandhi. In his independence address on 15 august 1987 he announced that an act would be passed, if necessary to check atrocities. [9: ] [10: PILLAI, V. KANNU, CASTE VIOLENCE IN TAMIL NADU: a sociological analysis,p.55, Centre for Developing Society, 2006]

The SC/ST (PoA) Act: Its Necessity and ObjectivesRight to non-discrimination enshrined in article 15[footnoteRef:11] discrimination against these vulnerable sections was still rampant. Hence Indian parliament enacted the untouchability offence act, 1955 however the important deficiency of the protection of civil right was that the fact that abuse against dalit were not limited to name calling or denial of entry into public spaces. However POA was enacted to bring these other forms of abuse to an end in POA the complaint is given more weight and there was stringent provision against the police for negligence.[footnoteRef:12]Which underwent amendment and renaming in 1976 to become the protection of civil rights act. But still a more comprehensive and more punitive act was required to protect SCs and STs from violence committed by other communities. This gave rise to the POA, 1989.which provide responsibility on state and union territories to specific, preventive and punitive measure to protect SCs and STs from being victimized and, where atrocities are committed ,to provide adequate relief and assistance to rehabilitate them.[footnoteRef:13] So the basic objective and intention of law maker is to deliver justice to SC/ST communities through affirmative action[footnoteRef:14] in order to enable them to live in society with dignity and self esteem and without fear, violence or suppression from dominant castes.[footnoteRef:15] [11: Prohibition Of Discrimination On Grounds Of Religion, Race, Caste, Sex Or Place Of Birth(1) The State Shall Not Discriminate Against Any Citizen On Grounds Only Of Religion, Race, Caste, Sex, Place Of Birth Or Any Of Them(2) No Citizen Shall, On Grounds Only Of Religion, Race, Caste, Sex, Place Of Birth Or Any Of Them, Be Subject To Any Disability, Liability, Restriction Or Condition With Regard To(A) Access To Shops, Public Restaurants, Hotels And Palaces Of Public Entertainment; Or(B) The Use Of Wells, Tanks, Bathing Ghats, Roads And Places Of Public Resort Maintained Wholly Or Partly Out Of State Funds Or Dedicated To The Use Of The General Public(3) Nothing In This Article Shall Prevent The State From Making Any Special Provision For Women And Children(4) Nothing In This Article Or In Clause ( 2 ) Of Article 29 Shall Prevent The State From Making Any Special Provision For The Advancement Of Any Socially And Educationally Backward Classes Of Citizens Or For The Scheduled Castes And The Scheduled Tribes.] [12: Interview of T.K Chaudhry (DGP) by Human right watch,bombay, feb 5,1998] [13: National Commission for SCs, First Report 2004-05, New Delhi, 2006, pp.222-3Report can be access at : http://www.ncsc.nic.in/pages/view/219/218-first-annual-report] [14: Dr. Ram Krishna Balothia v. Union of India, AIR 1994 MP 143] [15: NHRC, Reporton Prevention of Atrocities against SCs, New Delhi, 2002, pp.14-15)Report can be access at: http://nhrc.nic.in/Documents/Publications/reportKBSaxena.pdf]

Forms of atrocities A study conducted by the National Commission for and STs in 1990 on Atrocities on Scheduled Castes and Scheduled Tribes: Causes and Remedies pointed out various casual factor for atrocities which are as follows- Land dispute Land alienation Bonded labor to pay their debt[footnoteRef:16] [16: Narula Smita , Broken People: Caste Violence Against India's "untouchables", Human Rights Watch, 1999]

Non-payment of minimum wages etc.[footnoteRef:17] [17: Parliamentary Committee on the Welfare of SCs & STs, 4th Report 2004-05, New Delhi, 2005, para 1.2.]

Scheduled castes have been physically and socially excluded from mainstream society, denied basic resource and service. The scheduled tribes were equally exploited on grounds of not falling within the caste system and having a distinct culture and world view of their own[footnoteRef:18]and vulnerable against sexual exploitation.[footnoteRef:19] [18: Report card 20 Years Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, National Coalition for Strengthening SCs & STs (Prevention of Atrocities) Act, april 2010.Available at: http://www.ncdhr.org.in/latestinterventions/Report%20Card%20Eng.pdf] [19: Parliamentary Committee on the Welfare of SCs and STs, 4th Report 2004-05, New Delhi, 2005, para 1.4.]

Victimization and performance of POA.The basic problem in implementation of POA can be classified in two heads which are as follows: Non-Implementation by police authorities At primary level of state- society interfere[footnoteRef:20] [20: South Asian Society of Criminology and Victimology. International Conference, Nati Ron'el, First International Conference Of The South Asian Society [Of] Criminology And Victimology (SASCV), 15-17 January 2011, Jaipur, Rajasthan, India: SASCV 2011 : Conference Proceedings]

Non- implementation: police authoritiesThe main problem in proper implementation of the act lies in the unawareness of the existence of such act because underreporting is a very regular phenomenon and many a times police resort to various tactics to discourage SC/ST person from registering their case,[footnoteRef:21] to deflect from the seriousness of violence, and to protect the accused from arrest and prosecution because many a time accused belongs to upper caste. Ministry of social justice and empowerment and the ministry of home affairs noted that that in many cases the police willfully neglect the POA and did not register the FIR. While section 4 of POA[footnoteRef:22] lay down the punishment for non implementation of the POA but still the condition at the police level is not good.[footnoteRef:23]national crime record bureaus figure reveal that 71% of the atrocities against dalit and tribals reported between 1995 and 2007 were not registered under the act.[footnoteRef:24]Moreover more than 75% cases brought under the SC/ST act end in acquittal at all levels.[footnoteRef:25] [21: M.C. Prasannan v. State , MANU/WB/0072/1999] [22: Section-4 Punishment for neglect of duties: Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, wilfully neglects his duties required to be performed by him under this Act, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year Punishment for neglect of duties.] [23: Supra .16] [24: NCRBs report available at: http://ncrb.nic.in/ciiprevious/Data/CD-CII2007/cii-2007/FIGURES_2007.pdf] [25: Observation of justice Ramaswamy in state of karnatka v.ingle (1992) 3 S.C.R. 284]

International Standards Applicable to IndiaVarious International Human Rights covenants and conventions applicable to India, include:(a) Universal Declaration of Human Rights 1948,(b) International Covenant on Civil and Political Rights 1966,(c) International Covenant on Economic, Social and Cultural Rights 1966,(d) International Convention on Elimination of all forms of Racial Discrimination 1965,(e) Convention on Elimination of all forms of Discrimination against Women 1979,(f) Convention on Rights of the Child 1989,(g) ILO Convention No. 29 - Forced Labour Convention 1930,(h) ILO Convention No. 111 - Discrimination (Employment and Occupation)Convention 1958,(i) ILO Convention No. 107 - Indigenous Peoples Convention 1957.All the above have been signed and ratified by the India. In addition, the Convention against torture and other cruel, inhuman or degrading treatment or punishment (1984) has also been signed but not yet ratified though There is pressure on India to ratify it since mechanisms have been provided against the practice of torture and Courts and National Human Rights Commission have also issued directions in this matter. These international instruments lay down norms and standards for treatment of individuals and groups and protection of their rights. As a result of these conventions, Government of India is required to submit periodical reports to the concerned international organizations monitoring their enforcement. The concerned Committees of these organizations make observations or furnish comments on the reports submitted.[footnoteRef:26] [26: Sakshi, Dalit Human Rights Monitor-2000, Andhra Pradesh, P. 152]

Misuse of legislation:However POA is still not free from bias, malice[footnoteRef:27] where many a time person belongs to SC/ST community fabricates and vexatious litigation in order to satisfy his personal bias. Being a special social legislation involving stringent provisions which do not even provide for an anticipatory bail, it is all the more necessary for this court to ensure that the same are not misused or abused by persons to peruse their personal agendas.[footnoteRef:28]In many case court held that merely because victim belongs SC/ST, same cant be the sole ground for prosecution.[footnoteRef:29] However where party failed to prove a fact does not amount to falsehood of case.[footnoteRef:30]Kerala high court was of the view that in order to convict person under POA it is necessary to prove that offence was with racial prejudice.[footnoteRef:31] This legislation has been enacted with a sole object to prevent the commission of offences and atrocities against the members of Schedule Castes and Scheduled [27: West Bengal State Electricity Board V. Dilip Kumar Ray, AIR 2007 SC 976 ,where court define MALICE consists in a conscious violation of thelaw to the prejudice of another and certainly has different meanings with respect to responsibility for civil wrongsand responsibility for crime.] [28: Gajraj Singh Tomar V. State & Ors, Crl.M.C.No.4024/2008] [29: Masumsha Hasanasha Musalman V. State Of Maharashtra, AIR 2000 SC 1876] [30: A. Abdul Rashid Khan (Dead) & Ors. V. P.A.K.A. Shahul Hamid & Ors., (2000) 10 SCC 636)] [31: Available at : http://timesofindia.indiatimes.com/city/kochi/Kerala-HC-rules-against-misuse-of-SC/ST-atrocities-prevention-act/articleshow/18926671.cms]

Cases registered under crime against SCs and STs in India during 2001-2012.[footnoteRef:32] [32: Report can be access at : http://ncrb.gov.in/CD-CII2012/Additional_Tables_CII_2012/Additional%20Tables.htm]

*source: NCRB

SlCRIME200120022003200420052006200720082009201020112012

Crimes against SCs

1Murder763739581654669673674622629572673651

2Rape131613311089115711721217134914531350135015571576

3Kidnapping & Abduction400319232253258280332477511510616490

4Dacoity412924262630235042413627

5Robbery13310570728090868167755440

6Arson354322204211210226238224195150169214

7Hurt454744913969382438473760381441344322434442473855

8Other Crimes Against SCs122011438311401114351107711808134901464515091150391495814164

9Protection of Civil Rights Act63310186343642914052062791681436762

10SC/ST (POA) Act1311310770804888918497858198191146511037104191134212576

Total Crimes against SCs335013350726252268872612727070300313343033412326433371933655

Crime against Scheduled Castes Incidence of Crime - National (Incidence (IPC+SLL): 33,655)The year 2012 has witnessed a decrease in crime against Scheduled Castes as 33,719 cases reported in the year 2011 have decreased to 33,655 cases in the year 2012. This decrease wasObserved in all heads except rape, arson and POA Act. The cases of rape, arson and SC/ST (Prevention of Atrocities) Act in the year 2012 have increased by 1.2%, 26.6% and 10.9% respectively over the year 2011. On the other hand murder, kidnapping & abduction, dacoity, robbery, hurt and Protection of Civil Rights Act have shown a decrease of 3.3%, 20.5%, 25.0%, 25.9%, 9.2% and 7.5% respectively during the year 2012 over the year 2011. Uttar Pradesh has accounted for 18.4% (6,202 cases) of the total 33,655 cases reported in the country followed by Rajasthan(16.5%) (5,559 Cases), Bihar (14.3%) (4821 Cases) and AndhraPradesh (9.1%) (3,057 Cases). The average conviction rate forcrimes against Scheduled castes and Scheduled tribes stood at 23.9% and 22.5% respectively as compared to overall conviction rate of 38.5% relating to IPC cases and 88.6% relating to SLL cases.

Conclusion.Despite the fact that India constitutionally abolished the practice of untouchability in 1950, the practice and atrocities are still rampant. Incidence of killing bridegroom belongs to Dalit community if he marry with a girl of upper caste are normal nowadays. Incidence such as Badaun is flaming example of the same and violence has now become a defining characteristic of the abuse. Nonetheless POA was established to provide for the rehabilitation and relief of the victims. However without a serious and sustained commitment to implementing constitutional safeguard and other national and international legal protections, human rights abuse in their most degrading forms will continue against SCs and STs. The POA has the potential to bring about social change by sending the message that human rights violations against SCs will not go unpunished.

Bibliography 1. AMBEDKAR.B.R. & RODURIGUES AND VALERIAN, THE ESSENTIAL WRITINGS OF B.R.AMBEDKAR, Oxford University presses (New Delhi).2. GHUMAN PAUL, BRITISH UNTOUCHABLE: A STUDY OF DALIT IDENTITY AND EDUCATION,P-4, Ashgate Publishing,Ltd.20133. Jacob. T. G, Reflections on the Caste Question: An Overview of Tamil Nadu, Karnataka & Keralam, NESA Publication, 200064. NARULA SMITA, BROKEN PEOPLE: CASTE VIOLENCE AGAINST INDIAS UNTOUCHABLE, P.291,Human Right Watch ,19995. Sudha pai- Developmental State and the Dalit Question in Madhya Pradesh: Congress Response6. NCRB Report of crime in india-2013

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