Professional Documents
Culture Documents
BHOPAL
LAW
INSTITUTE
UNIVERSITY,
HUMAN RIGHTS
Project 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
INDEX
1. Introduction05
2. Measure to ensure non-discrimination06
3. SC/ST prevention of atrocities act, 1989.08
4. International standard applicable to India.11
5. Conclusion...16
6. Bibliography.17
INDEX OF AUTHORITIES
Cases
Abdul Rashid Khan (Dead) & Ors. V. P.A.K.A. Shahul Hamid & Ors., (2000) 10 SCC 636).....11
Dr. Ram Krishna Balothia v. Union of India, AIR 1994 MP 143................................................7, 8
Gajraj Singh Tomar V. State & Ors, Crl.M.C.No.4024/2008........................................................10
M.C. Prasannan v. State , MANU/WB/0072/1999.........................................................................8
Masumsha Hasanasha Musalman V. State Of Maharashtra, AIR 2000 SC 1876........................10
state of karnatka v.ingle (1992) 3 S.C.R. 284..................................................................................9
West Bengal State Electricity Board V. Dilip Kumar Ray, AIR 2007 SC 976 ,.............................10
Constitutional Provisions
NARULA
SMITA,
BROKEN
PEOPLE:
CASTE
VIOLENCE
AGAINST
INDIAS
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
Proceedings..................................................................................................................................8
Reports
National Commission for SCs, First Report 2004-05, New Delhi, 2006, pp.222-3........................7
NHRC, Reporton Prevention of Atrocities against SCs, New Delhi, 2002, pp.14-15)....................7
INTRODUCTION
India 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.1
WHO ARE UNTOUCHABLE / SCHEDULE CASTE
Indian 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.2 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.3
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. 4 Constitution
1
AMBEDKAR.B.R. & RODURIGUES AND VALERIAN, THE ESSENTIAL WRITINGS OF
B.R.AMBEDKAR, Oxford University presses (New Delhi).
2
NARULA SMITA, BROKEN PEOPLE: CASTE VIOLENCE AGAINST INDIAS
UNTOUCHABLE, P.291,Human Right Watch ,1999
3
GHUMAN PAUL, BRITISH UNTOUCHABLE: A STUDY OF DALIT IDENTITY AND
EDUCATION,P-4, Ashgate Publishing,Ltd.2013
4
Ibid.
5
of India though provides protection5 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.
MEASURE TO ENSURE NON-DISCRIMINATION
The Indian Constitution6 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.
LEGAL RIGHTS
Special 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:
5
Article 15,17 23,24 and 25(2)(b)
6
Article 15
6
(i) Protection of Civil Rights Act, 1955(Formerly known as Untouchability (Offences) Act, 1955.
(ii) Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989.7
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,8 kilavenmani
massacre of 42 dalit in 1968whic was in some or other way was a caste holucaust. 9 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
7
Hereinafter refer as POA.
8
9
PILLAI, V. KANNU, CASTE VIOLENCE IN TAMIL NADU: a sociological analysis,p.55,
Centre for Developing Society, 2006
7
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.
11
Interview of T.K Chaudhry (DGP) by Human right watch,bombay, feb 5,1998
8
adequate relief and assistance to rehabilitate them. 12 So the basic objective and intention of law
maker is to deliver justice to SC/ST communities through affirmative action13 in order to enable
them to live in society with dignity and self esteem and without fear, violence or suppression
from dominant castes.14
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 debt15
Non-payment of minimum wages etc.16
12
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
13
Dr. Ram Krishna Balothia v. Union of India, AIR 1994 MP 143
14
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
15
Narula Smita , Broken People: Caste Violence Against India's "untouchables", Human Rights
Watch, 1999
16
9
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 own17and vulnerable
against sexual exploitation.18
VICTIMIZATION AND PERFORMANCE OF POA.
The basic problem in implementation of POA can be classified in two heads which are as
follows:
The 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
Parliamentary Committee on the Welfare of SCs & STs, 4th Report 2004-05, New Delhi, 2005,
para 1.2.
17
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
18
Parliamentary Committee on the Welfare of SCs and STs, 4th Report 2004-05, New Delhi, 2005,
para 1.4.
19
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
10
various tactics to discourage SC/ST person from registering their case, 20 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 POA21 lay down the punishment for non
implementation of the POA but still the condition at the police level is not good. 22national 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.23Moreover more than 75% cases brought under
the SC/ST act end in acquittal at all levels.24
20
M.C. Prasannan v. State , MANU/WB/0072/1999
21
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.
22
Supra .16
23
NCRBs report available at: http://ncrb.nic.in/ciiprevious/Data/CD-CII2007/cii-2007/FIGURES_2007.pdf
24
Observation of justice Ramaswamy in state of karnatka v.ingle (1992) 3 S.C.R. 284
11
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.25
MISUSE OF LEGISLATION:
However POA is still not free from bias, malice 26 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. 27In many case court held that
merely because victim belongs SC/ST, same cant be the sole ground for prosecution. 28 However
25
Sakshi, Dalit Human Rights Monitor-2000, Andhra Pradesh, P. 152
26
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.
27
Gajraj Singh Tomar V. State & Ors, Crl.M.C.No.4024/2008
28
Masumsha Hasanasha Musalman V. State Of Maharashtra, AIR 2000 SC 1876
13
where party failed to prove a fact does not amount to falsehood of case. 29Kerala 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.30 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
Cases registered under crime against SCs and STs in India during 2001-2012.31
*source: NCRB
Sl
CRIME
200
1
200
2
200
3
200
4
200
5
200
6
200
7
200
8
200
9
201
0
201
1
201
2
763
131
6
400
739
133
1
319
581
108
9
232
654
115
7
253
669
117
2
258
673
121
7
280
674
134
9
332
622
145
3
477
629
135
0
511
572
135
0
510
673
155
7
616
651
157
6
490
41
29
24
26
26
30
23
50
42
41
36
27
Murder
Rape
Kidnappi
ng
&
Abductio
n
Dacoity
29
A. Abdul Rashid Khan (Dead) & Ors. V. P.A.K.A. Shahul Hamid & Ors., (2000) 10 SCC 636)
30
Available at : http://timesofindia.indiatimes.com/city/kochi/Kerala-HC-rules-against-misuse-ofSC/ST-atrocities-prevention-act/articleshow/18926671.cms
31
Report can be access at : http://ncrb.gov.in/CD-CII2012/Additional_Tables_CII_2012/Additional%20Tables.htm
14
Robbery
133
105
70
72
80
90
86
81
67
75
54
40
Arson
354
322
204
211
210
226
238
224
195
150
169
214
Hurt
Other
Crimes
Against
SCs
Protectio
n of Civil
Rights
Act
SC/ST
(POA) Act
Total
Crimes
against
SCs
454
7
122
01
449
1
143
83
396
9
114
01
382
4
114
35
384
7
110
77
376
0
118
08
381
4
134
90
413
4
146
45
432
2
150
91
434
4
150
39
424
7
149
58
385
5
141
64
633
101
8
634
364
291
405
206
279
168
143
67
62
131
13
335
01
107
70
335
07
804
8
262
52
889
1
268
87
849
7
261
27
858
1
270
70
981
9
300
31
114
65
334
30
110
37
334
12
104
19
326
43
113
42
337
19
125
76
336
55
10
15
16
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
17
18