Dalits and The Law

Introduction
The Scheduled Castes are known as harijans i.e children of God- a term coined by Mahatma
Gandhi in 1933.
After over six decades of independence, casteism is more entrenched today than it was at
independence.
We have seen cases where the upper castes have thrown excreta into the wells of the
scheduled castes, with neither the police nor the judiciary caring to intervene.
InstanAces
Temples being constructed by the scheduled castes have been demolished on the pretext that
the dust from the construction was polluting the areas where the upper castes live.
Dalits have been brutally beaten and have had their neighbourhoods razed to the ground only
because they dared to bathe in the common village pool or draw water from the well of the
upper castes at times of drought.
iii) Filthy abuse is common.
iv) Forcing dalits to vote against their will for an upper caste is common.
v) Once in the Punjab, dalits were forced to drink urine from a shoe for not showing proper
difference to the upper castes.
vi) Cutting trees owned by dalits or stealing their cattle is routine.
vii) In Uttarpradesh and Punjab, a large number of encounter deaths, on closer scrutiny, turn
out to be nothing other than the murder of dalits in land dispute cases.
viii) After the Supreme Court made it mandatory for the mid-day meal to be served in every
primary school, the upper castes were most unhappy that their children would have to sit and
eat together with the Scheduled Castes.
Dalit Rights & Principal Legislation
Constitution of India
Art.14 Equality before law
Art.15- Prohibition of Discrimination on grounds of religion, race, caste, sex or place of birth
Art.16 Equal opportunity in matters of public employment

A rt.17Abolition of untouchability
Art.23 Right against exploitation: Prohibition of traffic in Human beings and Forced Labour.
Art.24 Right against exploitation : Prohibition of employment of children in factories etc.
Art.25- Right to freedom of Religion
Art.29 Protection of interests of Minorities
Art.350(A) Facilities for instruction in mother tongue at primary stage.
Art.350(B) Special officer for Linguistic Minorties
Art.46 Promotion of educational and economic interests of SCs and STs and other weaker
sections.
Art.164 Minister in charge of tribal welfare and welfare of SCs and Backward classes in
selected States.
Art.330-- Reservation of Seats in the Lok Sabha for SCs and STs.
Art.332Reservation of Seats in the Vidhan Sabha for SCs and STs .
Art.334 Time Limits on Reservation of Seats.( Though ten years but continuously amending )

II) Legislations
a) The Bonded Labour System(Abolition) Act 1976
b) The Child Labour (Prohibition and Regulation) Act 1986
c) The Protection of Civil Rights Act 1955
d) The Scheduled Castes and Scheduled Tribes (prevention of Atrocities) Act 1989.
e) Employment of Manual Scavengers and Construction of Dry Latrins (Prohibition) Act
1993
In pursuance of Art.17 of the Constitution of India, The Untouchability Practices Act, 1955 was
enacted. Later it was amended and remanded in 1976 as the Protection of Civil Rights Act to
make it more effective.
On witnessing an increase in violence against members of SC and ST, leading to brutalities such
as mass murder, rape, arson, grievous injuries etc., a special law for their protection was enacted
known as SCs and STs (Prevention of Atrocities ) Act, 1989.

A number of anti-discremination statutes and positive benefit provisions exist in Indian law for
the protection and benefit of dalits, tribals, and other backward classes of society, but the
implementation and enforcement of these laws is poor.
The primary piece legislation designed to provide a measure of protection to dalits and to enforce
their rights is the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
Though the Act is a marvelous piece of legislation, it is seriously underutilized.
Dalits who try to register a FIR about an offence are face with insurmountable obstacles. The
police are arrogant and offensive. A majority of criminal cases do not get registered at all. When
the complaints are written by the police, these materially depart from the story orally
communicated.
The names of accused persons will be found missing. The description of the atrocity will be
diluted. The actual words of abuse will be omitted. Finally the police will threaten the victim
with a counter case. On filing of charge sheet, bail is almost always granted. Immediately on
their release, the accused begin to threaten the complainants and force them to withdraw their
complaints or to turn hostile in court.
If a dalit persists with a criminal case, a social and economic boycott begins. The services of the
dalit labourers connected with the complainant are terminated and they cannot find employment
anywhere. Shops will not sell them goods. Ultimately, they will be forced to leave the village or
face terrible physical reprisal.
Then come the prosecutors to mess up the litigation further.
Drawn mainly from the uppers castes, they immediately indentify with the accused and begin to
sabotage the criminal trial.
They do not summon the relevant witnesses. They advise witnesses for prosecution to make such
statements as will weaken the prosecution case. They do not produce relevant forensic evidence
available to them.
Finally, they argue the case with such lack of conviction that the judge concludes that the case
lacks merit.
Truly the entire judicial system, where dalits are so underrepresented, operates unequally against
the victims of these most heinous crimes.
As a result the Prevention of Atrocities Act remains unimplemented with judges, lawyers,
prosecutors and policemen hardly interested in implementation of the statute.

Police Negligence and Collusion

i)

At the Stage of FIR registration

By not registering complaints by dalits as FIRs, or registering FIRs under incorrect

sections of the law, or leaving out the provisions of the SC/ST (PoA) Act, police fail to both
carry out their official law and order duties as well as abide by the law.
ii) False Counter Cases against Dalits
The option forced on dalit victim is enter into a compromise and relinquish all rights to
justice for atrocities perpetrated against them. The growing phenomenon of false counter cases
defeats the very purpose of the SC/ST(PoA)Act.
iii) At the stage of Charge sheeting and Investigation
A vast majority of cases are never investigated and charge sheeted. (only final report)
Compensation Denied
Despite the existence of numerous Government Orders and a Scheduled Castes and Scheduled
Tribes Cell within the Social Welfare Department to look after the implementation of relief and
rehabilitation measures under the SC/ST(PoA)Act and Rules, compensation and rehabilitation
rights continue to be denied where atrocities against Dalits take place.
Seeking Justice Before the Law
Finally if a dalit victim is lucky enough to escape or overcome these hurdles, as is the case with
a small percentage of cases that reach the courts, the victims feeling that all are not equal before
the law is reinforced by the courts misinterpretation of the spirit of the SC/ST(PoA)Act.
i)

Granting of Bail

In no circumstances where a prima facie case exists, should a person charged with offences
under the SC/ST(PoA) 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 harassment and further violence.
ii) Investigation not done by competent authorities
Nine out of 11 cases where appeals were filed citing technical fault in that the investigation
of the incident was not done by competent authorities, namely the DySP or higher ranking officer
as per Rule 7 of the SC/ST(PoA)Rules, ended in favour of dominant caste accused being
acquitted of the charges.

iii) Special Court has no Jurisdiction to take congnizance of SC/ST cases unless it is
committed by Magistrate court. This is evidence enough of unnecessary delays being imposed
in the trial of atrocity cases.
iv) Crime not Committed on the ground of being SC/ST
one of the greatest fallacies in reading the SC/ST(PoA) Act lies in the overemphasis on
establishing that the atrocity took place on the ground that the victim was a SC/ST.
In Lalubha Keshrisin Garasia v State of Gujarat and others
Despite the fact that dalits were attacked by the dominant castes with dangerous weapons
and one dalit was killed, the Court held that there was no evidence to show that Dalits had been
attacked on the basis of the caste and hence the provisions of the SC/ST(PoA) Act were set aside.
Violation of Dalit Rights: Legal issues, Case Law & Recommendations
i)

Committal Proceedings

Vidyadharan v State of Kerala

Since a Special court did not cease to be a Court of Sessions, it can only take cognizance
of a case arising under the SC/ST (PoA) Act if the case has been committed to it by a Magistrate.
Issue
By requiring that all cases have to go through a committal process by a Magistrate to
the Special Courts, not only is the overburdened regular court system being stretched with this
unnecessary responsibility but also efficacy and pace of special courts in disposing of atrocity
cases is slowed down.
Recommendation
The Parliament must be pushed to amend the SC/ST (PoA) Act so that
Special courts are specially empowered not only to deal with atrocities cases but also take
cognizance of offences without the accused being committed to it for a trial.
ii) Perpetrator committed the offence on the ground that the victim was a member of S.C
or S.T
For certain offences against dalits Sec.3(2)(v) of the SC/ST (PoA) Act provides for the
enhancement of the punishment that is available under IPC for the same offfences.
But for the enhanced punishment to be applicable, the prosecutor would have to
show that the offender committed the crime on the ground that the victim was a member of a SC
or ST.
Issue

It is not easy to prove that accused committed the offence against victim only because he is
SC or ST. It is virtually impossible to show what went on in the mind of the offender.
Recommendation
There should be no need for the prosecution to have to prove that the perpetrator committed the
offence o the ground that the victim was a member of a SC or ST, that should be taken as a
given.
iii) Atrocities Act does not apply when offender also a Dalit
It is important that although the provisions of the SC/ST (PoA) Act may not be attracted,
charges can still be filed under the provisions of the IPC.
The purpose of the Act is to rectify the oppression of dalits by members of the dominant
castes, and as such, it would be an abuse to try to use the provisions when a dispute arises
between dalits.
iv) Atrocities Act does not apply when offender is a Juvenile
For such offences Juvenile Justice Act applies.
v) Insulting, intimidating or humiliating a dalit in Public
Whoever, not being a member of a SC or ST intentionally insults or intimidates with
intention to humiliate a member of a SC or ST in any place within public view shall be
punishable with imprisonment for a term which shall not not less than 6 months but which may
extend to 5 years and with fine.
Issues When the dalit victim manages to provide sufficient evidence to prove that they were
humiliated, courts throw out the cases based on technicalities. ( Like Public Place and Public
View)
Recommendations
Insisting on a narrow interpretation of the text by distinguishing between in public view versus
in a public place to exonerate upper caste offenders who insult and humiliate dalits undermines
the very purpose of the Act. Courts should take humiliating a dalit is a very serious crime and
should take the entirety of the circumstances into account before they rule.
vi) Temple Entry :
Sec.3 of The Protection of Civil Rights Act( PCRA)
Whoever on the ground of untouchability prevents any person from entering any place
of public worship which is open to other person professing the same religion or any section

thereof, as such person shall be punishable with imprisonment for a term of not less than one
month and not more than six months and also with fine.
vii) Assault, Rape or Sexual and Other Humiliation of Dalit Women
Whoever not being a member of a SC or ST assaults or uses force to any woman belonging
to a SC or ST with intent to dishonour or outrage her modesty shall be punishable which may
extend to five years.
Recommendations The Investigation Officer must collect all possible physical evidence and
obtain detailed statements from the victim and her family, friends and members of the
community.
viii) Religious conversion does not automatically cause loss of status as member of a SC or
ST.
In State of Kerala and another v Chandramohanan
S.C held that A member of the tribe despite his change in the religion may remain a
member of the Tribe if he continues to follow the tribal traits and customs.