HVK Archives: Protecting the Dalits
Protecting the Dalits - The Hindustan Times
M.N. Buch
()
5 November 1997
Title: Protecting the Dalits
Author: M.N. Buch
Publication: The Hindustan Times
Date: November 5, 1997
The strongest point of the Constitution is its emphasis on justice and equality. Ale Preamble mandates this and the chapter on Fundamental Rights enshrines this. Article 14 provides for equality before law. This Article further states that every person will be entitled to equal protection of the law. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
No doubt the Constitution makes a special provision to protect the interests of minorities, Scheduled Castes, Scheduled Tribes and persons from a backward class of citizens who do not find adequate representation in the services under the State. Article 17 abolishes untouchability and Article 23 prohibits any form of forced labour. Laws meant for the protection of the minorities, Scheduled Castes, Scheduled Tribes and backward classes cannot, however, override the provisions of Articles 14 and 15 which pr
vide for equality before law an prohibition of discrimination.
In the matter of criminal justice; there are certain basic principles of Anglo-Saxon jurisprudence which form the cornerstone of criminal law and which have been accepted by both the Constitution and the relevant laws of Parliament and the State Legislatures. For example, Article 20(3) states that a person accused of an offence may not be compelled to be a witness against himself. Under Section 24 of the Indian Evidence Act, an induced confession is not relevant and under Section 25 a confession made to
a police officer cannot be admitted in evidence. Under Section 101 of the Indian Evidence Act the burden of proof lies on the person who alleges a fact and is required to prove it.
Thus, if there is an allegation made that a person has committed an offence, then the burden of proving that an offence has been committed by the accused lies on the person making the allegation. This section flows from the principle that a person is deemed to be innocent till proved to be guilty. The accused is not required to prove his innocence.
What constitutes an offence or a crime? According to the Chambers Twentieth Century Dictionary, crime is defined as "a violation of law: an act punishable by law". Similarly an offence is described as an infraction of law. The whole scheme of the Indian Penal Code is that it defines offences or, rather, acts which amount to a criminal offence, and then goes on to prescribe the punishment for such offences.
In other words, it is the act which is an offence. A person per se cannot be an offence because a person is either one who commits the offence or one who is the victim of an offence. The law can state that depriving a person of his property illegally is an offence. It cannot say that if the perpetrator is a Jain or a Brahmin or an Ahir, he constitutes an offence on account of his being in existence.
In 1989 Parliament enacted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The statement of objects and reasons gives the argument for the enactment of this law. The Minister introducing the Bill stated that Scheduled Castes and Scheduled Tribes are denied civil rights and subjected to atrocities, which normal law has failed to prevent. Therefore, in order to remedy this the Bill was being introduced.
The Minister said, "The term 'atrocity' has not been defined so far. It is considered necessary that not only the term 'atrocity' should be defined but stringent measures should be introduced to provide for higher punishment for committing such atrocities." One can have no quarrel with the statement because a crime has to be defined in the context of the environment in which it is committed and punishment has to be designed to suit the gravity of the offence.
Section 3 of the Act gives 15 types of atrocities which Would attract punishment under this law. In this there is nothing objectionable because the law views the gravity of an offence according to the status of the victim and describes what acts relating to that victim would be defined as an atrocity. But the legislation goes further. All these offences against a member of the Scheduled Castes and Scheduled Tribes become atrocities only if committed by person who is not a member of a Scheduled Caste or
Scheduled Tribe.
Thus, for example, if a caste Hindu, a Muslim or a Christian takes 'begar' from a Dalit or prevents him from voting he commits an atrocity. If a tribal or a Dalit does the same act against a tribal or a Dalit he does not commit an atrocity. A Brahmin police officer who assaults a Scheduled Caste or Scheduled Tribe woman commits an atrocity. A Dalit or a tribal police officer does not commit an atrocity if he assaults a Dalit or a tribal woman. A non-SC/ST person who forces a SC/ST person to eat an inedibl
or obnoxious substance (which, presumably, would include poison), commits an atrocity. A SC/ST person who does the same act does not commit an atrocity.
The statement made in Parliament by Rajendra Kumari Bajpai, the Minister who introduced the Bill, clearly states that the idea is to prevent atrocities being committed against members of Scheduled Castes and Scheduled Tribes. It does not matter who commits the atrocity because, so far as the victim is concerned, whether he is insulted or beaten by a person who is from an upper caste or a person from his own caste or tribe, he suffers the same injury.
Let me give an example. Recently in Bastar it was alleged that certain tribals purchased land belonging to other tribals and thereafter obtained permission to cut the trees standing there. The land had been purchased at much less than the market value, which amounts to depriving the original tribal owner of the land unfairly. A non-tribal, by law, could not have bought the land or cut the trees and, therefore, the tribal purchaser was used as a front man or, conversely, was an active partner in the consp
racy.
The end result for the original owner, however, was that he was cheated, but this does not constitute an offence under Section 3 of the Atrocities Act because it was not committed by a non-Scheduled Caste or Scheduled Tribe person. How has this benefited the original owner of the land?
There is a saying that whether a pitcher hits a stone or a stone hits a pitcher, it is the pitcher which breaks. If a member of the SC/ST commits an offence against another member of the SC/ST, why should the punishment be less than that for a caste Hindu? In law the accused must be treated as equal to any other accused. What is important is the offence itself and the status of and injury to the victim. As the law stands today obviously what is important is who commits the offence rather than the extent
f the injury.
Incidentally, it would be a mistake to believe that only caste Hindus discriminate against the Scheduled Castes or Scheduled Tribes. So far as tribals are concerned, they are subjected to economic exploitation but not to the kind of social discrimination faced by the Dalits. Within the Scheduled Castes there are innumerable cases of untouchability being practised by one sub-caste against another or a person from one sub-caste looking down on members of another subcaste. In other words, atrocities are oft
n committed on each other by persons falling within the wide spectrum of Scheduled Castes.
Why are these not defined as atrocities under the Act? The Helas of Ujjain, who are Sunni Muslims and, therefore, not defined as Scheduled Caste, are discriminated against by other Muslims because Helas work as sweepers. Untouchability is practised against them by other Muslims and they cannot go to the Idgah for Id Namaz. However, because they do not officially belong to the Scheduled Caste, these practices do not amount to an atrocity under the Act, though the pain they feel is no less than that of a me
ber of the Scheduled Castes. Is this not discriminatory?
'Re creation of a separate class of criminals based on caste or ethnicity does not seem to be permitted by Article 14. It militates against the very principle of equality before law. Regardless of the caste, class or religion to which a person belongs, he is entitled to equal protection of laws. If he is discriminated against in this behalf it amounts to a violation of his fundamental fights. Had the law defined an offence in the context of the status of the victim there would be nothing wrong in it. But
when it defines an offence in the context of the caste, religion or class of the alleged offender, then it is discriminatory and should be nullified.
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