m c raj

Introduction

In a stunning acknowledgement of the prevalence of widespread denial of Human rights and dignity to the Dalits Mr. Manmohan Singh, the Prime Minister of India made the following remarks on 28 December 2006. “Even after 60 years of constitutional and legal protection and support, there is still social discrimination against Dalits in many parts of our country. Dalits have faced a unique discrimination in our society that is fundamentally different from the problems of minority groups in general. The only parallel to the practice of untouchability was apartheid”.

We are helplessly aware of the social-economic imbalance that prevails in this country before and after independence.

It is evident from the Prime Minister’s Speech that the Constitutional legal provisions are made to protect the Dalits from discrimination. Yet, there is atrocity in all walks of life on the Dalit people. This would imply two possible realities:

Reality No.1

The social forces in this country (read caste forces) are more powerful than the rule of law.

Reality No 2

The rule of law is taken control of by the dominant social forces.

It is in this context that the purpose behind the several government programmes for the development of the Dalits should be understood. Sensitization in this context would mean ensuring of speedy delivery and justice to the Dalit under the various Government programmes.

I. Instruments of Dalit Protection

1. Setting up of the National Commission for SC/STs under Article 338 of the Constitution of India

2. Setting up of State Commissions for SC/ST

3. The Protection of Civil Right Act, Act 22 of 1955

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4. Karnataka SC/ST PTCL Act of 1978

5. SC/ST Prevention of Atrocities Act 1989

6. SC/ST Prevention of Atrocities (Rules 0f 1995)

II. SC/ST Prevention of Atrocities Act of 1989

Punishable Offenses Under the Act

i. Socio-Cultural Offenses

1. Forcing Dalits to either eat or drink any inedible or obnoxious substance. E.g. Bendigeri

2. Dumping excreta, waste matter, carcasses in the Dalit area with an intention to cause injury, insult or annoyance to the Dalits. (This is a bit tricky and needs a lot of sensitization for justice. It is difficult to prove the intention in a court of law. It also gives a loose end to the police to easily escape saying that there was no intention).

3. Forceful removal of clothes from body, naked parading or painting the face or body etc.

4. Intentional insult or intimidation to humiliate a Dalit in any public place within public view.

5. Assault or use of force against any Dalit woman with an intention to dishonor or outrage her modesty

6. Being in a position to dominate over the will of a Dalit woman and making use of that position to exploit her sexually to which she would not have otherwise agreed.

7. Corrupting or fouling the water of any spring, reservoir or any other source ordinarily used by Dalits so as render it useless for the purpose for which it is meant.

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8. Denial of the customary right of passage to a place of public resort or obstructing Dalits from using public places.

9. Forcing or causing a Dalit to leave his house, village or other place of residence.

ii. Economic Offense

1. Wrongfully occupying or cultivating any land owned by or allotted to, or notified by any competent authority to be allotted to a Dalit or getting the land allotted to a Dalit transferred

2. Wrongfully dispossessing a member of the Dalit Community of his land or premises or interfering with the enjoyment of his right over any land, premises or water.

3. Compelling or enticing a member of the Dalit community to do ‘begging’ or other similar forms of forced or bonded labor other than any public service imposed by the Government.

4. Committing mischief by fire or any explosive substance with the knowledge that it would cause damage to any property belonging to the SC/ST

5. Committing mischief by fire or any explosive substance with the knowledge that it would cause destruction or any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property of a Dalit.

iii. Political Offense

Forcing or intimidating a member of the Dalit community not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law.

iv. Judicial Offense

1. Instituting false, malicious or vexatious suit or criminal or other legal proceedings against a member of SC/ST

2. Giving any false or frivolous information to any public servant and thereby causing such public servant to use his lawful power to the injury or annoyance of a Dalit.

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3. Giving or fabricating false evidence intending thereby to cause any Dalit member to be convicted of an offence which is capital by law. Such a person shall be punished with death.

4. Giving or fabricating evidence against a Dalit either intending or knowing that it would cause not capital punishment but imprisonment for seven year or more. Such a person will be punished with six months to seven years of imprisonment and with fine.

5. Causing the disappearance of evidence with the intention of screening the offender from legal punishment or giving any false information for the same purpose.

v. Public Servants

If any public servant commits any crime under any of these sections shall be imprisoned for not less than one year. The upward period will be decided by the court.

Special Features of this Act

Any willful neglect of public servants is punishable under this Act

There is enhanced punishment for subsequent conviction.

If any offender uses his property for the offense against the Dalits under this Act, such property will be forfeited to the Government.

The Act provides greater scope for preventive detention.

There are also provisions for Special Courts and special public prosecutor

There is no scope for anticipatory bail

The State governments are under the mandate of the Act to ensure effective implementation of the Act.

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III. The SC/ST Prevention of Atrocities Rules of 1995

Salient Features

Duties of District Administration

1. Information of an offense should be given to the police officer in charge of a police station.

2. Spot Inspection by concerned officers

3. An offence committed under the Act shall be investigated by a Police officer not below the rank of a Deputy Superintendent of Police. Such investigation should be completed on top priority within 30 days.

4. The following measures should be taken by the District Administration

Shall visit the scene of crime

Registration of FIR without delay

Effective measures must be taken to apprehend the accused

Shall make arrangements for providing immediate relief.

Duties of the State Government

1. Preventive and Precautionary measures must be taken by State Governments

2. Supervision of prosecution and submission of reports are the responsibilities of the State Government

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3. The State Governments shall set up a SC/ST Protection Cell at the State Headquarters under the charge of the Director General of Police/Inspector General of Police.

4. The State Government shall nominate a nodal officer of the level of a Secretary to the Government preferably belonging to the Dalit community to coordinate the functioning of the District magistrates and Superintendent of Police or other officers.

5. The State Government shall appoint a Special Officer

6. It shall be ensured by the State Government that persons from SC/ST are adequately represented in the administration and in the police force at all level, particularly at the level of Police Posts and Police Stations.

Support to Victims

1. Traveling Allowance, Daily Allowance, Maintenance expenses and Transport Facilities must be provided to the victims of Atrocity, her/her dependent and witnesses.

2. The State Government shall make necessary provisions in its annual budget for providing relief and rehabilitation facilities to the victims of the Atrocity.

3. The State Government shall make contingency plans for the Victims.

Special Measures to be Taken

At the State Level

1. The State Government shall constitute a State level Vigilance and Monitoring Committee comprising not more than 25 members.

Chief Minister – ChairmanHome MinisterFinance Minister and Social Welfare Minister

All Dalit MPs, MLAs and MLCs – membersCS, HS, DGP and Deputy Director General of National Commission of SC/STs – members

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Secretary (SC/ST Welfare) – Convener

2. The State Government should submit an Annual report to the Central Government before 31 March of every year.

At the District Level

A District Level Vigilance and Monitoring Committee shall be set up.

DC – Chairman

Elected Members of Parliament, State Legislative Assembly and Legislative Council.

SP3 Group ‘A’ officers (Gazetted officers belonging to Dalit communities)Not more than 5 non-official members belonging to Dalit communities)Not more than 3 members other than Dalits having association with NGOsDSW – Member Secretary

The District level committee should meet at least once in three months.

Difference with PCR Act of 1955

The 1989 Act is for the total prevention of all forms of atrocities on Dalits with specific reference to the SC/STs

PCR Act was on the other hand to cover all the victims of untouchability whether they were SC or not

Under PCR even SC/St can be accused of practicing untouchability against other groups

PCR does not provide for -legal protection from false implications-protection to women-protection to properties-compensation to victims-no provision for special courts-no special police officers to investigate

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Provision of Anticipatory bails is applicable.

IV. Other Factors in Sensitization

1. The onus of proving the offence is on the victim who is already a victim of the caste society. Socio-economic compulsions on the victim are too much to withstand in favor of justice to self. The case of Kampalapally is a glaring example.

2. Legal education of Dalits and Dalit leadership on this Act itself is very much lacking.

3. The Act is used for political vendetta making using of simple Dalits by the Caste forces. Consequently legal actions against genuine offenders are often doubted by the courts.

4. Civil Society Organizations are generally headed by non-Dalits and therefore there is very little interest in this Act in society at large.

5. India is considered to be an economic giant in the world today. But what sort of a giant can it be with such gross neglect of the Dalits?

6. Can the problems of the Dalits be resolved in this country without giving proportional representation to them in the Instruments and Mechanisms of National governance. Dalits must be represented in the Parliament and in the State Legislature not through reservation of seats but through proportional electoral system by which they will have their representatives according to their percentage of votes.

Conclusion

Through the electoral process in India only one party becomes the executive. They are in power for a short while. But the executives of the government are permanent till they retire from their jobs. They have a primary duty to educate those elected representatives who come to executive position of governing the country. Therefore, the permanent executives have also a prominent duty for social change. All necessary changes must be brought about by responsible government servants. Sensitized government officers have a paramount duty of

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sensitizing the elected representatives to the critical issues that confront the masses of people.

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