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Misconstruction of the Anti-atrocities Act’s Misuse

Sthabir Khora (sthabir@tiss.edu) is with the School of Education, Tata Institute of Social Sciences, Mumbai.

Drawing upon a study, this article examines whether the “final reports,” which is the official term for closed cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, are justified or not. The popularly accepted notion is that the act is misused by members of the Scheduled Castes against the upper castes, but there is no acknowledgement of its misuse by the upper castes using the former as proxy.

It is generally supposed that the legal proposition is to be accepted not because of ratione imperii, but imperio rationis (not by reason of power, but by power of reason). Pierre Bourdieu points out that it is difficult to find pure reason or pure power. Therefore, sometimes, people have to obey the court for the simple reason that they have to. Therecent Supreme Court judgment (Subhash Kashinath Mahajan v The State of Maharashtra 2018) is the culmination of a discourse that portrayed the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) (PoA) Act, 1989 as more misused than used. The judgment in the case has relied on three other high court judgments (supposed to be illustrative and not exhaustive) and the National Crime Records Bureau’s (NCRB) Crime in India 2016 report. It does not quote any other government or academic study on the misuse of the act. If the NCRB data on false cases is proved to be irrelevant, which this article will try to do, then the judgment is relying on pure judicial acknowledgements. This is in stark contrast to the judgment on reservation in promotion (M Nagaraj & Others v Union of India & Others 2006) which in its conclusion emphasises the importance of statistics.

The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. (emphasis added)

False cases constitute a major part of the “final reports,” popularly known as closed cases. This article draws from a study on the final report done for a state in north India. It was commissioned by the state government and accepted by its police department. The broad objective of the study was to investigate whether the final reports under the act are justified or not. It eventually turned into a study of false cases because out of the 498 cases studied (secondary data), 6.02% were of a “civil nature,” 3.41% were classified as “mistake of fact” and about 89.36% as “false.” The author’s analysis was based on primary and secondary data with the former comprising interviews of 76 complainants, 70 accused, and 69 witnesses pertaining to 73 final reports of 10 police stations in six districts. The secondary data analysis was based on around 500 final reports of all the police stations in the six districts. The reference year was 2010 with respect to four districts and 2013 with respect to two districts.

No Presumption of Innocence

As stated earlier, the supposed misuse of the PoA Act prominently hinges on the false cases category in the final report. A close look at the NCRB 2016 data that theSupreme Court judgment has relied on would be helpful (Table 1).

It is worth noting that when thefigures under the Indian Penal Code (IPC) are compared to those under the act, the pattern in “false cases” is just opposite to that under “true but insufficient evide­n­ce.” In the category of false cases, the IPC figure is 3.67% while the act one is 13.58%. In the category of true but insufficient evidence cases, the IPC figure is 19.86% while that under the act is 4.92%. How is this to be interpreted?

This article interprets these figures on the basis of the author’s existing knowledge of the legal system. A police officer has pointed out that the rate of filing of charge sheets in a court of law is inversely proportional to the income of the acc­used (Saini 2000: 386). Another police officer has observed that “the Indian police have typical characteristics of being strong towards the weak and weak towards the strong (Gautam 1984). Therefore, the number of false casesunder the IPC sections, which is caste neutral, appear fewer in comparison to those under the act, which deals with the weak and the marginalised.

The category of “true but insufficient evidence” basically provides a safe passage for the accused with the benefit of doubt being given by the police. The act, however, does not allow the police to provide this escape route. This is theauthor’s interpretation. If one goes only by the number of false cases without looking at the wider context, there is scope for sensationalism. For an example of this, one could say that there were 1,05,546 false cases under the IPC in 2016.

The registration of these cases can be seen as suspicion, the charge sheet asaccusation and the judgment as conviction/acquittal. The false case in the final report is not even a suspicion, but the opinion of the police that a complaint is not true. It can be raised to the level of sus­picion if the relevant IPC sections (182, 186, 211) are applied and action is recommended. Out of the 461 final reports in the study, a total of 47 (10.20%) recommended application of the relevant IPC sections for lodging false cases. Theoretically, all cases labelled as “false” will attract these sections, though, in practice, the police in the cases studiedimposed them on only about 10% of the cases. If we take cognisance of these statistics, we have to virtually pare down the official statistics on the false cases by 90% to get the true picture.

Be that as it may, if one is entitled to presumption of innocence even at the trial stage, then the complainant is fully entitled to the presumption of innocence at the stage of the false case in the final report. It must be emphasised that if presumption of innocence holds, the charge of misuse cannot hold.

In the study, each final report was classified as “justified,” “not justified,” or “inconclusive” after comparing the interview data of the complainant, accused, witness/es and the final report (the
police record). “Justified” means that the police have rightfully concluded the final report, “not justified” means that they have not done so, and “inconclusive” means that it is not possible to comment based on the data available. Thus, “justified” does not mean that nothing happened but that there was no violation of “substantive justice.” Sometimes, a wrong can be perpetrated while staying well within the right side of the law. There is a case in the study where a complainant’s son abdicated his land infavour of the accused by signing some documents while under the influence of liquor plied on him by some persons and the lure of being taken to Italy. The police can do very little in such instances. There were 42 justified cases, 29 (39.72%) not justified and only two were inconclusive. This implies that 40% of the so-called false cases are themselves false. If we take this into account, we need to pare down the statistics of the official false cases in the final reports by 40% to arrive at the correct number of false cases that deserve to be cate­gorised as such. This also indicates that the power differential of the accused and complainant has a role to play in influencing whether a case is categorised as false or not. Finally, the study found seven cases of misuse of the act, meaning that the incident most probably did not happen at all. However, the complainant was a pawn for upper-caste rivalry in two cases. Therefore, if we assume that there were five cases of abuse of the act then the percentage is 6.85% (five out of 73 cases of primary data).

Misuse by Upper Castes

The popularly accepted notion is that the POA Act is misused by members of SCs/STs against the upper castes. There is as yet formally no acknowledgement that it is also misused by the upper castes to settle scores by using members of the SCs/STs as proxy. When the 461 final reports of six districts were analysed, 57 final reports (12.36%) mentioned that the complainant was a pawn in upper-caste rivalry. While the relevant IPC sections were invoked against the complainant for lodging a false case in five different cases, no final report recommended any action against the “abettor.”

The upper castes are able to misuse the law in two ways because of the imbalance of power bet­ween the upper castes and the SCs/STs. The former are entrusted with implementing the law. First, the complai­nant is put on the wrong side of the law. Second, the sheer weak position of the complainant forces them to allow the case to die. The first way is illustrated in the following cases (from secondary data).

The complainant’s father was allotted land in 1972 but did not occupy it as per the official records. The other villagers later on began opposing his occupation of the land on the ground that it had become “common land.” There was no measurement of the plot by the revenue department when the road passed through this land.

One can easily imagine the situation, had the complainant been more powerful. On what basis could the villagers oppose the occupation of land allotted to him? If the government is responsible for construc­ting a road through the complainant’s land without proper verification, then it should compensate him for the same. This is not a case where there is ambiguity of any kind. The police final report clearly mentions that the land belongs to the complainant, but it does not propose any proactive measure against the persons who are violating the complainant’s rights. This indicates that the administrative structure mimics the bias present in the social structure.

The other feature of this imbalance of power is that, the victim, being in a weak position, cannot take a strong stand against the accused. The following case (from primary data) is illustrative of this.

Complainant Subhas Jatav says—“While I was doing my work as a sweeper on 03/1/13, Bhamma s/o Gajendra of the village came and said—sale bhangi, you do not sweep properly. Then I said—I do properly. Got angry on this and said—sale bhangi, dare to rebut me. Started assault on this—sale bhangi, got to drive you out from the village. Will close your source of livelihood and close the way to take the animals for grazing.”

Witness Shyam—“when Subhash was doing the sweeping work on 03/1/13 then Bhamma s/o Gajendra of the same village assaulted and insulted with caste slurs. Fault was not of Harijan. All influentials of the village got together and harassed that poor a lot.”

Police Final Report—“Panchayat decided that all encroachment around pokhar to be removed. In this process complainant’s hut was also removed. Complainant too submitted a rajinama.”

Even if one takes the police version to be correct, one can guess that the victim may have encroached because he did not have land of his own. The police washed their hands off the case by pointing out the legally wrong position of the complainant. It is a no-win situation for the victim. If the victim wins on the legal front, they lose on the economic side, which they can ill afford. Winning is simply not an option. There is a legal proverb that states, “Let justice be done even if the world perishes.” However,ordinary mortals can ill afford to perish and the need to live takes precedence over any other concern like justice. Therefore, directly or indirectly, the case is allowed to collapse. They might have the “ability to register” a case, but they do not have the “ability to pursue” a case because they are too vulnerable.

Voluntary/Involuntary Rajinama

Legally speaking, the rajinama/samjhauta/samjhai “compounds” the case, though the PoA Act is “non-compoundable.” This is also cited as some sort of evidence of misuse with the assertion that if it is true no one would compound it without considering the possibility that one may be forced to do so.

Out of the 461 final reports of the six districts, 81 (18%) mentioned the rajinama, albeit in different ways explicitly and implicitly. In 11 cases, the IPC sections related to false cases (182, 186, 211) were recommended. As per primary data, 15 out of 71 cases (21.21%) resulted in rajinama. Among the “not justified” cases, it was 27.58% (eight out of 29). Rajinama per se may not constitute injustice, though it is illegal considering that the act is non-compoundable. But, rajinama under duress is both illegal and unjust. The rajinama in the “not justified” cases is a matter of concern. About 27.58% rajinama cases are suspect. They are most probably under duress. The following statements are illustrative:

(i) “I did the rajinama on being told to do so by the villagers.”

(ii) “The Deputy Superintendent of Police (DySP) came to appraise of the situation and got me to sign on the rajinama paper. He had come after rajinama ... (Justice is) equal treatment to all. No injustice to any.”

(iii) “The rajinama in my case was not justice in my eyes but I signed on it because the village people suggested that I do so.”

The principal reason why rajinama takes place is because of the persuasion cum pressure by other villagers, the elderly (maziz) in the village, the sarpanch and sometimes even the police. There is also the compulsion “to stay in the village.” The weak and powerless complainant is in a double jeopardy situation when they are forced to do the rajinama under pressure and on top of it get charged under IPC Sections 182, 186, 211 for lodging a false case.

If upper castes can bend and twist the very law that is supposed to check their atrocity and put the SC/ST in a double jeopardy situation through forced complaint or rajinama, then how far is it
tenable to constrain the act?

Compensation as Inducement

Overall, taking into account all the complainants, accused, and witnesses, only 42.31% were aware of the PoA Act. What is a cause for concern is that complainants who primarily gain protection under this law, are not any more aware (37.84%) than the accused (45.71%). Only one complainant mentioned about compensation. Let alone the law, often the marginalised do not know about the fate of their cases, with about 45% of complainants in the “not justified” cases being in this situation. If all the complainants are taken into account, 35.21% are unaware that their cases have already become final reports.

If only 37.84% of the complainants in the studied cases are vaguely aware of the law and if only one mentions compensation, then one has to doubt the assertion that compensation is a factor triggering false cases under this act. By lodging false cases, members of SCs/STs may or may not get compensation but they will certainly incur the wrath of the upper castes on whom they are dependent on many fronts. We have already seen that one of the reasons for rajinama is the “need to live in the same village.”

Implication of Prior Permission

This study found that the first choice, whether voluntary or forced, is to register a case through the court (CrPc 156[3]). There is hardly any case registered through the superintendent of police’s office. Roughly, only one-third of the cases are lodged in a police station, while the remaining two-thirds are registered through the court. Altogether, out of the 442 cases analysed, 70.6% were registered through the court (CrPc 156[3]), 34.39% were registered through the police station, and only 4.3% were registered through the superintendent of police’s office. This indicates the distance between the people and the superintendent of police’s office.

The 10-year average number of cases in the study district ranged from 84 to 461. The senior superintendent of police (SSP) has a busy schedule. It is, thus, difficult to visualise the SSP being able to do due diligence before giving or withholding the arrest order. In any case, the PoA Act does not have any specific guidelines regarding arrest. It does not say that arrest is a must if a first information report has been filed. Making prior approval of the SSP neccessary can result only in delaying the procedure just like the earlier committal procedure was used to delay the cognisance by the sessions court.

Conclusions

So long as caste prevails, casteism and caste atrocities will continue. The Constitution has of course abolished untouchability through Article 17. However, it did not abolish the caste system, though it is the cause of untouchability. The caste system is justified by the Hindu scriptures like Manusmriti and the Rig Veda. These scriptures, which are an essential part of the Hindu religion, are protected under the freedom of religion granted in the Constitution. Stratificatory devices like caste, class, gender and ethnicity are also identities and the identity is a prized possession of individuals while being protected under a liberal framework, which is in turn based onindividualism. Since one cannot abolish all the actual and potential stratifier-cum-identities (liberalism will never allow this), the next alternative is to remove the sharp edges of the stratifiers that hurt people. For this purpose, the rule of law devises various legal measures and the PoA Act is one such measure. Instead of putting a brake on this anti-discrimination law, there is an urgent need for taking legal measures against indirect discrimination, which is fully compatible with liberal constitutional morality.

References

Gautam, D N (1984): What Is Wrong with IndianPolice, Delhi: NBO Publishers Distributors.

M Nagaraj & Others v Union of India & Others: WP(C) No 000061-000061/2002, http://sci.gov.in/jonew/judis/28160.pdf.

— (2006): Writ Petition (Civil) No 61 of 2002, Supreme Court judgment dated 19 October, http://sci.gov.in/jonew/judis/28160.pdf.

— (2018): Criminal Appeal No 416 of 2018, Supreme Court judgment dated 20 March, http://sci.gov.in/supremecourt/201­7/2­­­2086/­­­2­­­2086_2017_Judgement_20-Mar-2018.pdf.

Saini, Kamal (2000): Police Investigations Procedural Dimensions, Law and Methods, Delhi: Deep and Deep Publications.

Subhash Kashinath Mahajan v The State of Maharashtra: ANR.Crl.A No-000416-000416-2018, http://sci.gov.in/supremecourt/20­17/22­­­086­­­/­­­22086_2017_Judgement_20-Mar-2018.pdf.

Updated On : 16th Apr, 2018

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