ABSTRACT
India, the human emporium exhibits a typical form of society established on the basis of caste hierarchy. Caste system paved the way for occupying the topmost step of the social ladder by a group of people and compelled the other group to occupy the bottom of social ladder, a life with untold miseries and sorrows. They struggled for centuries to get relieved from the cruel clutches of the upper sections of the society. Upliftment of the weaker sections of the society is the responsibility of the government. After independence, the Constitution of India which envisages the welfare of its citizens, lays down in article 38 of part IV under Directive Principles of State Policy that the state will strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economical and political shall be in uniform in all institutions of the national life1. Social safety nets have been variously conceptualized and categorized in the last several years. The category “safety net” is used to cover a variety of mechanism implemented in conjunction with structural adjustment measures on certain groups or to create or improve both social and physical infrastructure. Political awakening, which loomed large in the late 19th century among various communities, was one of the principal factors which forced the state to pay attention to the upliftment of the lower castes. In modern democracy, the legislature is not only a law making body but the custodian of the public interest and watch dog of the rights of the people. The constitutional framers, in order to establish an egalitarian social order devoid of caste system, attempted to reconstruct the hitherto caste ridden social order and to ensure the ex-untouchables, the fortunate victims of the caste system, the right to equality and dignity.
Introduction
The preamble of the constitution proclaimed to secure the people of India, “social, economic and political justice, equality of status and opportunity and to promote fraternity, assuring the dignity of the individual”. Thus aiming at anti-caste discrimination, part III of the Constitution of India provides fundamental rights to the citizens of India to assure equality, freedom and a dignified life. Article 14 of the constitution of India provides for the right to equality before Law and equal protection of law for Dalits, keeping in mind the graded inequality prevalent in the Indian society2. The Indian constitution provides equality before law and equal protection of laws so that all people are considered equal in the eyes of law and they are equally protected by the laws of the country. Article 15 prohibits, inter alia, discrimination on the basis of caste and allows preferences to be made in favour of the scheduled castes. To overcome the historical discrimination of Dalits, the Government of India adopted several steps to prohibit the practice of Untouchability. The steps include Constitutional guarantees, Legislative enactments and Policy measures.
The Untouchability Offences Act 1955
The low caste people faced a lot of untold miseries due to the cruel practice of untouchability. So inorder to eradicate the evil practice of continuing untouchability in the society, an act was enacted in the parliament of India on 8th May 1955, known as “Untouchability Offences Act” alias “Protection of Civil Rights Act 1955”. It prescribed the punishment for the practice of “Untouchability”, for the enforcement of any disability arising there from and for matters connected with that. This Act was extended to the whole of India. After a prolonged discussion, this act came into force on 1st June 19553. As per the provisions of the act, the various offences such as preventing a person on the ground of untouchability from entering a place of public worship, offering prayers there in or taking water from a special tank, well or spring, denying access to any shop, public restaurant, public hospital or educational institutions, hotel, or any other places of public entertainment, denying the use of any road, river, bathing gates, water tape, cremation ground, sanitary convenience, Dharma Salas, Sarai or Musafir Khana or Utensils kept in such institutions and hotels and restaurants, denial of opportunities to practice any occupation, trade or bussiness, enforcing occupational, professional or trade disabilities, denial of enjoyment of any benefit under a charitable trust in the construction or occupation of any residential premises in any locality or the observance of any social or religious usage or ceremony, shall be punishable with imprisonment which may range from one month to six months or with fine, which may extend to five hundred rupees or with both. Under the ground of untouchability, if a Dalit was refused to admit in a hospital for treatment, for refusing to sell goods or render services to a Harijan on the ground that she/he is a Harijan, for molesting injury or annoying a person or organizing a boycott of or taking part in the ex-communication of a person who has been exercised the rights accruing to him as a result of the abolition of untouchability, compels any person belonging to the Scheduled Castes or Scheduled Tribes on the ground of untouchability to do any scavenging or sweeping or to remove any carcass or to flay animal or to do any other job of a similar nature, shall be deemed to punishable with imprisonment for a term which shall not be less than three months to six months and also with a fine of one hundred rupees to five hundred rupees.
Cancellation or Suspension of Licenses of Arms
With a view to control the attrocities among the depressed class people in a unrest area, the Act provides provisions to cancell the licence of the weapons of the offender. When a person who is convicted for an offence under section (6) of The Untouchability Offences Act 1955, holdss any license under any law for the time being in force in respect of any profession, trade, calling or employment in relation to which the offence is committed, the court trying the offence may, direct the license shall stand cancelled or be suspended for such period as the court may deem fit and every order of the court so cancelling or suspending a license shall have effects as if it had been passed by the authority competent to cancel or suspend the license under any such law.
Resumption or Suspension of Grants made by the Government
The government provides grants to various organisations and institutions for the purpose of charity, with an intention for the upliftment of all weaker sections of the society. On the ground of untouchability, if any denial was created to the use of, or access to any place used for a charitable or a public purpose maintained wholly or partly out of state funds or dedicated to the use of the general public, enjoyment of any benefits under a charitable trust created for the benefit of general public ,where the Manager or Trustee of a place of public worship or any educational institution or hotel which is in receipt of a grant of land or money from the government is convicted of an offence under this Act and such conviction is not reversed or quashed in any appeal or revision, the government may, if in its opinion the circumstances of the case warrant such a course, direct the suspension or resumption of the whole or any part of such grant. Similarly, a public servant who willfully neglects the investigation of any offence punishable under this act shall be deemed to have abetted an offence punishable under this act. For the offence committed under this act by a company, every person who at the time of offence was committed was a charge of and was responsible to the company for the conduct of the business of the company, shall be deemed to be guilty of the offence and shall be liable to be preceded and punished. Such offences shall be tried by a Judicial Magistrate and a punishment of minimum three months of imprisonment can be imposed.
The responsibility of ensuring the rights acquired by the abolition of untouchability is vested with the state government. By abiding the rules enacted by the Central Government in this behalf, the State Government shall take such measures as may be necessary for ensuring that the rights arising from the abolition of ‘Untouchability’ are made available to, and are availed by the persons subjected to any disability arising out of untouchability. The state government should guarentee the safety of the Depressed Class people. The measures that has been initiated by the state government in this aspect should include the following provisions. It should provide adequate facilities including legal aid to the persons subjected to any disabilities arising out of untouchability to enable them and to avail themselves of such rights. Special courts should be established for conducting speedy trial of offences under the act and officers should be appointed for initiating or exercising supervision over prosecutions for the contraventions of the provisions of the act4. It should set up committees at the state level which should be able to assist the state government in formulating or implementing such measures. For receiving suggestions and for the better implementation of the Act, provisions should be made for conducting periodic survey of the working of the provisions of the act. Special attention should be laid to identify the areas where persons are under any disability arising out of untouchability and adoption of such measures as would ensure the removal of such disability from such areas. For better implementation, the Untouchability Offences Act 1955 was amended on 2nd of March 19745.After amending, the Act was renamed as “Untouchability (Offences) Amendment and Miscellaneous Provisions Act, 1972”. Again the Act was ammended on 19 – 11- 1976 and the name was changes as “Protection of Civil Rights Act 1955”. Subsequently, to make the abolition of untouchability more effective, additional laws were enacted .
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989
The Scheduled Castes and Tribes (Prevention of Atrocities) Act 1989 was enacted by the Parliament of India (Act 33 of 1989) to prevent atrocities against Scheduled Castes and Scheduled Tribes. This Act was known as POA, SC/ST Act, the Prevention of Atrocities Act, or simply the Atrocities Act. It came in to force with effect from 30th January 19906. Article 17 of Indian Constitution seeks to abolish ‘Untouchability’ and its practice in any form is forbidden. It is basically a ‘statement of principle’ that needs to be made operational with the ostensible objective to remove humiliation and multifaceted harassments meted to the Dalits and to ensure their fundamental and socio-economic and politico – cultural rights. Due to the loopholes in the Untouchability Offences Act 1955, the Government of India and the state governments were unable to implement it in full-fledged way which compelled the central government of enacting a new law to safeguard the interests and to promote the welfare of Dalits. Despites various measures adopted to improve the socio- economic condition of SC’s and ST’s they remain vulnerable and are subject to various offences, indignities, humiliations and harassments7. When they tried to assert their independence, they are compelled to bow down to the humiliations of the high caste and they terrorized them. The normal provisions of the existing laws like, the Protection of Civil Rights Act 1955 and Indian Penal Code have found inadequate to check these atrocities continuing the gross indignities and offences against Scheduled Castes and Tribes8. So a new Act was enacted. This legislation aimed at preventing continuation of offences by persons other than Scheduled Castes and Scheduled Tribes against Scheduled Castes and Scheduled Tribes. Comprehensive rules under this Act, entitled “Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Rules, 1995” was notified in the year 1995 which inter-alia provides norms for the relief and rehabilitation. This act covers whole of India except the state of Jammu and Kashmir. This act is implemented by the respective State Governments and Union Territory administrators, which are provided with due central assistance under the centrally sponsored scheme for effective implementation of the provisions of the act. The statements of objects and reasons appended to the bill while moving it in the parliament read as :
The various attempts of the government did not improved the socio-economic condition of the SC’s and ST’s, to the expected level. They are denied a number of civil rights, and are subjected to various offences, indignities, humiliations and harassments. They have in several brutal incidents, been deprived of their life and property. Serious attrocities are committed against them for various historical, social and economic reasons . The various provisions of the Act are the term ‘Attrocity’ was not defined until this Act was passed in the parliament in 1989. In legal parlance, the Act defines the term to means an offence punishable9. It denotes the quality of being shockingly cruel and inhumane, whereas the term crime relates to an act punishable by law. It implies any offence under the Indian Penal Code(IPC) committed against SC’s by non SC persons or against ST’s by non ST persons10. Caste consideration as a motive is not necessary to make such offence in the case of attrocity11. It signifies crimes which have ingredients of infliction of suffering in one form or the other that should be included for reporting. This is based on assumption that where the victims of crime are members of Scheduled Castes and the offender do not belong to Scheduled Castes. Caste considerations are really the root cause of the crime, even though caste considerations may not be the vivid and minimum motive for crime. It emphasised for designating for each district a court of session as a special court for speedy trial of offences under the Act12. It stressed for the various preventive actions that to be initiated for maintaining law and order. It directed the state government to appoint public prosecutors or special public prosecutors for conducting cases in special cases. It clearly specified the various measures to be taken by the state government for effective implementation of the Act which should include the economic and social rehabilitation of the victims of the attrocities, setting up the committees at the appropriate levels for enquiry and to get suggestions for better implementation, identification of attrocity prone areas, providing legal aid to the persons subjected to attrocities to enable them to avail justice, appointment of officers for initiating or exercising supervision over prosecution for contraventions of the provisions of the Act. Special attention was laid on conducting periodic survey of the working of the provisions of the Act. The intention of the government of delivering justice and empower the so called depressed classes and make them to live in the society with dignity and self-esteem and without fear or violence or suppression from the upper caste is known from the preamble of the Act. The preamble of the Act is as follows:-
“To prevent the commission of offences of atrocities against the members of Scheduled Castes and Scheduled Tribes, to provide for the trials of such offences and for the relief and rehabilitation of the victims of such offences and for the matter are connected there with or incidental thereto.
Implementation of the Act
In order to ensure the speedy and strict implementation, the government has framed certain norms for the implementation of the Act and its functioning was brought under the direct control of the government which provided way for immediate justice. In accordance with section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act 1989, the state government for the purpose of providing speedy trial with the concurence of the chief justice of the High court, by notification in the official Gazetteer, specifies that in each district, a session of special court should be established to try the offences under the Act. For ensuring prosecution of cases under the Scheduled Castes and the Scheduled Tribes Act 1989, 137 exclusive special courts have been established in nine states. In Tamilnadu, there are four special courts for the cited purpose. Yet the situation has not improved much since 1992 to the figures given by the 2002 Annual Report dealing with SC/ST Act (the ministry of social justice and empowerment)13. In addition, there are fourteen designated District courts are trying cases under the acts.
Section 15 of the Scheduled Castes and the Scheduled Tribes (Prevention of Attrocities Act 1989), provides for appointment of advocate as public prosecutor and special public prosecutor for the purpose of conducting cases in the special courts. Accordingly, the State/Union Territories which set up special courts, appointed public prosecutors/special public prosecutors. In order to avoid consequent attrocities, as per Rule 3(1)(i) of the Act, the state governments should identify the attrocities prone area. Rule 10 of the Act provide for appointment of a special officer designated as Nodal Officer, not below the rank of an Additional District Magistrate in the identified area to co-ordinate with the District Magistrate, Superintendent of Police and other officers responsible for the provisions of the Act.
The Scheduled Castes and the Scheduled Tribes (Prevention of attrocities) Rules 1995
Eventhough the two Acts namely ‘Protection of Civil Rights Act 1955’ and ‘The Scheduled Castes and Scheduled Tribes (Prevention of Attrocities )Act 1989’ are strictly enforced, the Central and State Government were not able to control the attrocities committed against the Dalits . So the government was compelled to enact a new legislation to provide full fledged protection and to lift up them in the social ladder. As a result, ‘The Scheduled Castes and the Scheduled Tribes (Prevention of Attrocities) 1995 Act’ was enacted on 31st march 1995 which emphasized precautionary and preventive measures14. With a view to prevent attrocities committed against the Scheduled Castes and Scheduled Tribes, the state government should identify the attrocity prone area where it has reason to believe that attrocity may take place or there is an apprehension of re-occurrence of an offence under the Act, orders the District Magistrate and Superintendent of Police or any other officer to visit the identified area and review the law and order situation. If deems necessary in the identified area, the concerned authorities should cancel the arms license of the person not being member of the Scheduled Castes or Scheduled Tribes, their near relation, servants or employees and family friends and get such arms deposited in the government armory, set up awareness centers and organize workshops in the identified area or at some other place to educate the persons belonging to the Scheduled Castes and Scheduled Tribes about their rights and the protection available to them under the provisions of various central and state enactments of the rules, regulations and schemes framed there under. The State government on the recommendation of the District Magistrate prepare a panel of such number of eminent senior advocates who has been in practice for not less than seven years, as it may deem necessary for conducting cases in the special courts. Similarly, in consultation with the Director prosecution/in charge of the prosecution, a panel of such number of public prosecutors as it may deem necessary for conducting cases in special courts shall also be specified. Both these panels shall be notified in the official Gazette of the state and shall remain in force for a period of three years. The District Magistrate and the officer-in-charge of the prosecution at the district level shall review the position of cases registered under the Act and submit a monthly report on or before 20th day of each subsequent month to the Director of Prosecution and the State Government. This report shall specify the action taken or proposed to be taken in respect with the investigation and prosecution of each case .Another important salient feature of the Act is that every information related to the offence committed under the act, if given orally to an officer-in-charge of police station shall be reduced to writing by him or under his direction and be read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the persons giving it and the substance thereof shall be entered in a book to be maintained in the police station. Similarly a copy of the information as so recorded under such rule (1) above cited shall be given forth with free of cost to the informant.
An offence committed under the Act shall be investigated by a police officer not below the rank of Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking in account of his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. The most important salient feature of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocity) Rules 1995 is that it provides the facility to the affected Dalit to get relief amount to compensate his material loss.
Norms for Relief Amount
The government is providing relief amount to the victims according to the proportion of the loss they incurred by the attrocity committed against them. If a person belonged to the community of Scheduled Castes or Scheduled Tribe, and if he/she is compelled to drink or eat an inedible or obnoxious substance, Rs, 25000/-or more should be provided for the affected persons, depending upon the nature and gravity of the offence to each victim and also commensurate with the indeginity, insult, injury and defamation suffered by the victim. Similarly, for causing injury, insult or annoyance, 25% of the compensation amount will be paid to the victim, when the charge sheet is sent to the court. Balance 75% of the relief amount will be provided when the accused was convicted by the lower court.
For the offences like wrongful occupation or cultivation of land and relating to land premises and water of a person of a depressed class, a compensation amount of Rs.25000/-or above, depending upon the nature and gravity of the offence will be paid. Similarly the land, premise /water supply shall be restored where necessary at the government cost. Full relief amount should be paid while sending the charge sheet to the court. If a person belonged to the SC/ST community was forced for begging or compelled to do bonded labour, the victim should be paid a compensation of Rs.25000/-to each. 25% of the compensation amount will be paid when First Information Report is filed. Balance amount will be paid on the conviction in the lower court. For the offence of denying a person of the depressed community from his right to franchising his/her vote, he/she will be paid an relief amount of Rs.20,000/- depending upon the nature and gravity of the offence.
If false, malicious or vexatious legal proceedings is moved against an individual or group belonging to the Scheduled Caste or Scheduled Tribe community by the persons of other communities or by firms, companies or other agencies etc, Rs.25000/ or reimbursement of actual legal expenses or damages or whichever is less after conclusion of the trial of the accused should be provided to them.
For being insulted or humiliated by the other caste people, the Dalits should be compensated by paying up to Rs.25000/ to each victim depending upon the nature and seriousness of the offence. Among the relief amount 25% should be paid when the charge sheet is sent to the court and the rest of the amount during conviction. Subsequently, in order to arrest the offence against women, the government has imposed strict measures through this act. If a women belonging to the Dalit community was outraged or sexually exploited by the persons of other communities, she should be examined by a medical practioner in government hospital and if his report proves that the lady was sexually exploited, she should be paid an relief amount of Rs.50,000/. In the initial stage of the trial of case after conducting medical examination, 50% of the amount should be paid to her. Rest of the amount should be paid at the conclusion of the trial.
If the water in the wells of the Harijan colony or the water in the wells of Harijan families was fouled, compensation amount ranges up to Rs.100000/- or full cost of restoration of normal facility, including cleaning when the water is fouled. Payment may be made at the stage as denied fit by the district administration.
In the early times, the Dalits were considered as untouchables, as a result they were denied to enjoy many basic rights. As a part they were not allowed to use the public path or roads in many places. So with a view to change these situations and to make them free on using public paths, the government introduced certain reforms. One among them was that, compensating the victim for the denial of customary rights for passage. Compensation shall be paid up to Rs.100000/ or full cost of restoration of right to passage and full compensation of the loss suffered if any. 50% of the compensation amount should be given immediately when the charge sheet is send to the court. Balance of the amount will be paid on the conviction in the lower court. Similarly, protection was provided for ensuring the safety of their residence. If the residence of a Dalit was deserted or he was compelled to vacate the site where he was staying, which was his own property, the government should restore the site/right to stay and compensation of Rs.25000/ should be paid to each victim, in addition the demolished house should be again reconstructed on government cost. The full compensation amount should be paid to the victim when the charge sheet is sent to the lower court.
During trial of a case against a Dalit, if false evidence was provided against him and he was convicted, a relief amount of at least Rs.100000/- or full compensation of the loss or harm should be provided to him. 50% of the compensation amount should be provided when the charge sheet is sent to the lower court and 50% of the amount should be provided on conviction by the lower court. For an offence committed against a person of Scheduled Castes or Scheduled Tribes which will be punishable for an imprisonment for a period of 10 years or more under Indian Penal Code, the victim or his/her dependent should be compensated with at least Rs.50000/- or more according to the gravity of the case.
For the offences like murder, massacre, rape, and gang rape, at least Rs.100000/-should be paid to each victim. 75% of the amount should be paid after postmortem/conducting medical examination for rape cases and 25% on the conviction by the lower court. Inaddition, certain other relief aids are also provided for their dependents.
(a) Pension to each widow and/or other dependents of the deceased SC/ST at the rate of Rs.1000/-per month or employment to one of the family member of the deceased, or provision of agricultural land, and house if necessary by outright purchase.
(b) Full cost of education and maintenance of children of the victim, children may be admitted to Ashram Schools/Residential Schools.
(c) Provisions of utensils, rice, wheat, dhal, pulses, whatever necessary to satisfy basic needs of an ordinary family should be provided for a period of three months.
If the home of Dalit was destroyed by a fire accident, brick/stone masonry home should be constructed or provided for them at the government cost. Prevention of Attrocities Act 1995 only provided relief amount for the affected persons28. The amount was provided from the year 2000 onwards. By providing such remedial measures, the Dalits are able to get justice and compensation for their loss in all walks of life. It is the need of the hour to create awareness among the depressed sections of the societies about the legal rights and remedies provided for their emancipation.
– Dr. T. Samraj
Assistant Professor, Department of History, Bishop Heber College, Tiruchirappalli – 17
REFERENCES
1. C.R. Madan., Indian Social Problem,Vol-II,Bombay,1987.
2. Ajay, Attrocities on Dalits-Human Right Perspective, ILI Law Review,Vol-I, Delhi, 2006.
3. Notification No.S.R.O. 1109, dated 23rd May 1955, Gazetteer of India, Extraordinary, 1955, part.II.section -3, New Delhi.
4. The Protection of Civil Rights Act 1955, sec. 15 A (IV), (w.e.f. 19-11-1976).
5. G.O.No.152, Social Welfare Department, dated 2nd March 1974.
6. Report of Ministry of Social Justice and Empowerment, Government of India, New Delhi, 2006.
7. Sunith Mishra, Dalits and Untouchability, Delhi, 1999.
8. The Statement of the Object and Reason for SC/ST (POA) Act 1989, Delhi.
9. Scheduled Caste and Scheduled Tribe(Prevention of Attrocities ) Act 1989, sec. 3(1)(2) , Delhi, (w.e.f. 30-1- 1990).
10. Report of the Parliamentary Committee on the welfare of SC’s&ST’s, 4th Report, 2004-’05, Delhi, Para 1.1.
11. Clarification by Ministry of Home Affairs, noted in NHRC, Report of Prevention of Attrocities against SC’s and ST’s, New Delhi, 2002.
12. Scheduled Caste and Scheduled Tribe (Prevention of Attrocities ) Act 1989, sec. 14 (w.e.f. 30-1- 1990).
13. Annual Report on The Scheduled Castes and Scheduled Tribes (Prevention of Attrocities Act)1989 for the year 2002, p. 12.
14. Notification No: G.S.R. 316, Ministry of Welfare, New Delhi, dated 31st March 1995.