The Issue of SC Status for the Dalit Christians

 A Subversive Form of God Truth will set you free (Jn. 8.31-32) 

 “The ultimate measure of a man (or a woman) is not where he (or she) stands in moments of comfort and convenience, but where he (or she) stands at times of challenge and controversy.” – Martin Luther King Jr.

“Power without love is reckless and abusive, and love without power is sentimental and anemic. Power at its best is love implementing the demands of justice, and justice at its best is power correcting everything that stands against love.” –Martin Luther King Jr.

The demand for SC status for the Dalit Christians and Dalit Muslims is a long standing one. The word Dalit is derived from the root Dal, incidentally common to both Sanskrit and Hebrew. In both languages it has the same meaning i.e. weak, crushed, split open and trampled upon. The various lexicographical declensions connote these various meanings from physical to psychological levels of the oppressed and excluded people. For centuries, Dalits were not treated as part of the mainstream Indian Society and were traditionally assigned menial and degrading jobs.

Prior to 1947, the British, in response to growing demands from the oppressed and marginalised castes led by Babasaheb Ambedkar, arranged for a number of castes, whose names were specified in a schedule (hence called “Scheduled Castes”), to be given reservations in government jobs and elected bodies. The Simon Commission drew up an official list of socially excluded castes and tribes in 1930 called the “Schedule Castes” (SC) and “Schedule Tribes” (ST). “Scheduled” means they are on a government schedule that entitles them to certain protection and affirmative action (or reservations). These castes had historically been treated as despised “untouchables”, considered by the wider society and the Hindu religion as subhuman or worse. They were not defined by any religious label and included a number of castes or sections whose ancestors had converted to various religions, such as Christianity, Islam, Buddhism and Sikhism, in search of liberation from the shackles of caste that are sanctioned in Hinduism which, as Ambedkar rightly insisted, was a code designed to consign the Dalits to eternal, religiously sanctioned slavery. SCs thus included were not just those who were defined as following “Hinduism” (although the very term “Hinduism” was recognised as vague and amorphous and although the Dalits, being despised outcastes, were treated by the “upper” castes as actually outside the caste system and the Hindu religion), but also those classified as following other religions, mostly Christianity and Islam.

Constitutional Fraud

1.       Amendment proposed by K.M. Munshi

 India has its share of minorities—generally defined in religious terms—though the Constitution does acknowledge the existence of linguistic minorities. Indeed the Constitution of India has taken the identification of Indian minority from the report prepared by the Advisory Committee on minorities submitted to the Constituent Assembly in August 1947. As the report records, till this stage, the seven minority communities as officially accepted were (1) Anglo-Indian; (2) Parsees; (3) Plain tribesman in Assam; (4) Indian Christians; (5) Sikhs; (6) Muslims; (7) Scheduled Caste. While the Constituent Assembly in the process of “practically unanimously” accepting the Report, K.M. Munshi cunningly convinced the floor into approving an amendment to the Report. This ardent Brahmin leader asked for a seemingly innocent amendment: To (a) delete Scheduled Castes from the list of the minorities, (b) include the following addition, “I-A: The section of the Hindu Community referred to as Scheduled Castes as defined 1 of the Government of India Act 1935, shall have the same rights and benefits, which are herein provided for minorities specified in the Schedule to para 1.” That day the forum was preoccupied fully and only with the electoral structuring of the society especially of the minority communities, and so missed completely the religious implication of this “constitutional fraud”. The inner motive for the amendment is best expressed by the words of Munshi himself. He said, “Any safeguard as a minority, so far as the Schedule Castes are concerned, will possibly prevent their complete absorption in the Hindu fold.”[1] He stated, “Harijans are part and parcel of the Hindu community. Safeguards are given to them till they are completely absorbed in the community.”[2]

This debate and Munshi’s affirmation was fatal to the Schedule Caste people who became Christians. They were denied the same privileges enjoyed by the Schedule Caste who were not Christian.

2.      Presidential Order

The expression “Scheduled castes” is defined in Article 366, Clause 24 as meaning: “Such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be scheduled castes for the purpose of this Constitution.”

Article 341(1) now runs as follows:

“The President may, with respect to any State, or where it is a State specified in Part A or Part B of the First schedule, after consultation with the Governor or Rajpramukh thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled castes in relation to that State.”

In exercise of the powers conferred by Clause (1) of Article 341, the President made an order called the Constitution (Scheduled Castes) Order, 1950.

The material provisions of this Order are paragraphs 2 and 3 which are as follows:

“2. Subject to the provisions of this Order, the castes, races or tribes, or parts of, or groups within, castes, races, or tribes, specified in Parts 1 to XVI of the Schedule to this Order shall, in relation to the States to which those parts respectively relate, be deemed to be scheduled castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that schedule.”

“3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from Hinduism shall be deemed to be a member of a scheduled caste.”

Sikh Dalits protested to be included in Constitution (Scheduled Caste) Order 1950 and got after six years of denial of their birth, fundamental and constitutional rights of being Scheduled Caste origin converted to Sikhism. They were listed in Presidential SC/ST Order 1950 by amending Para 3 of Article 341 in 1956.

Buddhist Dalits were denied of their right for 40 years until the Para 3 of Article 341 was amended in 1990 to include Scheduled Caste people converted to Buddhism.

But the birth, fundamental and constitutional rights of Dalit Christians and Dalit Muslim have been denied for the past 65 years. Since they are not included in the Presidential SC/ST Order, they are ineligible for enjoying the benefits of affirmative action of the government.

Some serious questions arise from this presidential order.

1.             The Presidential Order allowed religious based reservation in total violation of Constitutional provisions in Article 15.

The Article states:

1.       The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.

2.       No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

3.       Access to shops, public restaurants, hotels and places of public entertainment; or

4.       The use of wells, tanks, bathing Ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of general public.

5.       Nothing in this Article shall prevent the State from making any special provision for women and

6.       Nothing in this Article or in Clause (2) or Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

The Presidential Order 1950 uses religion (i.e. Hinduism) as a criterion to define who shall be Scheduled Caste. On that basis all other Dalits professing Islam, Christianity and other religions are left out. The amended Presidential Order included Sikh and Buddhist religions along with Hinduism as criterion to define who shall be Scheduled Caste.

In 1990 in the Parliament, while stating the object and reason for proposing to include Buddhists of Scheduled Caste origin in the list of Scheduled Castes, Ram Vilas Paswan, then Union Minister of Welfare and Labour, made clear the criterion saying, “Neo-Buddhists are a religious group which has come into existence in 1956 as a result of a wave of conversion of Scheduled Caster under the leadership of Dr. B.R. Ambedkar. Upon conversion to Buddhism they became ineligible for statutory concession and facilities available to the Scheduled Castes to them also. On the grounds that change of religion has not altered their social and economic conditions…As they objectively deserve to be treated as the Scheduled Castes….”

The important points in Paswan’s argument are:

1.       Neo-Buddhists are a separate religious group.

2.       Dalits’ conversion to Buddhism has not altered their socio-economic conditions.

Paswan’s statement has been accepted and approved by the Parliament of India at the time of the second amendment of the Presidential Order 1950.

Both Sikhism and Buddhism are egalitarian religions, and they do not accept or promote caste system, although in actual practice caste exists in Sikhism and Buddhism just like in Christianity. One of the reasons for denying same privileges to the Dalit Christians and Dalit Muslims is that they both are egalitarian religions, and they do not have caste system, for the basis of caste system is Hinduism. If that is so, how did the Parliament extend privileges of Scheduled Castes to the egalitarian religions like Sikhism and Buddhism? If Dalits’ conversion to Buddhism has not altered their socio-economic conditions, then why government affirmative action is not extended to Dalit Christians and Dalit Muslims, although their change of religion has not changed their socio-economic conditions?

Is the government reservation policy based on certain religions (i.e. Hinduism, Sikhism and Buddhism) or the socio-economic conditions of certain sections or castes of people?

2.                      It is also in violation of Articles 14 (equality before the law), 16 (prohibition of discrimination on grounds of religion), and 25 (freedom to profess, practice and propagate any religion).

Article 14 says, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Article 16 says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Article 25 (1) says, “All persons are equally entitled to freedom of conscience and right freely to profess, practice and propagate religion.”

Recommendations of Various Commissions

The government of India set up several commissions to investigate the conditions of socially, economically and educationally backward classes in India.

1.          In 1953 Indian Central Government appointed “First Backward Classes Commission” under Article 340 of Indian Constitution to investigate the conditions of socially and educationally backward classes within Indian Territory. The Commission submitted its report in 1955. It states, “We discovered with deep pain and sorrow that untouchability did obtain in the extreme south among Indian Christians, and Indian Christians were prepared in many places to assert that they were still guided by caste, not only in the matter of untouchability, but in social hierarchy of high and low. While the harijans amongst the Hindus, classified as scheduled castes, stand a fair chance of bettering their condition under the Indian Government’s reservation policy, their Christian counterparts stand twice discriminated.” The Report says that within the Christian society and church the converts from Scheduled Caste origins are discriminated in matters like not being allowed to sit together inside the church, no inter caste marriages and separate cemetery etc.

The Commission’s Report proves that although Christianity does not preach caste, but practices it.

1.             Elayaperumal Commission (1969): Report of the Elayaperumal Commission in Para 32 says, “The Committee found during tours that all Scheduled Castes who got themselves converted to religions other than Hinduism should be given all concessions which are available to Scheduled Castes. This is because the Committee found during tours that they suffer from the same disabilities which the Scheduled Castes suffer.”

2.             The Chidambaram report in 1975 admitted that “casteism is practiced widely among the members of the Christian fold as judged by the characteristic of the caste system and going by the economic status of the Harijan Christians. It is evident that they are a poverty stricken lot.”

3.             Mandal Commission (1980): The Commission admitted that “conversion from the faith to another did not change the socio-economic status of a person. It was, therefore, desirable that converts from Scheduled Castes to Buddhism, Christianity and etc. should be treated as Scheduled Castes, but until this change was brought about by legislation, all such converts should be listed as Other Backward Classes (OBCs).” The Mandal Commission also stated that “though caste system is peculiar to Hindu society yet, in actual practice, it also pervades the non-Hindu communities in India in varying degrees.” It reported that the Christian community is not only divided into various denominations on the basis of beliefs and rituals, but also “into various ethnic groups on the basis of their caste background.”

On the basis of its findings the Commission proposed, “The Commission has prima facie felt that since the Christians, Muslims and Buddhists of Scheduled Caste origin continue to suffer from social and economic disabilities even after their conversion, there should be no objection to their availing of the concessions admissible to them before their conversion.”

1.       Justice Ranganath Misra Commission (2007): One of the recommendations of the Commission: Para 3 of the Constitution (Scheduled Castes) Order 1950 – which originally restricted the Scheduled Caste only to Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. – should be wholly deleted by appropriate action so as to completely de-link Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.

Thus, the government appointed Commissions in their study found that the change of religion to Christianity, Islam and others by the Dalits has not significantly changed their socio-economic and educational conditions. The Dalit Christians still suffer caste stigma, and are socially oppressed and economically, educationally and socially backward. They have observed that Dalit Christians are exposed to all sorts of misery both in the Church and in the society, such as violence and exclusion from the use of ordinary facilities like wells, roads, restaurants, schools, etc.

In 1984, The Supreme Court of India in the case of S. Anbalagan Vs. Devarajan AIR 1984 SC 411, said that “the practice of caste however irrational it may appear to our reason and however are repugnant it may appear to our moral and social sense, it is so deep rooted in the India people that its mark does not seem to disappear on conversion to a different religion.”

In spite of the recommendations of the government appointed Commissions to include Dalits, who embraced religions like Christianity, Islam and others, in the Scheduled Castes list as there is no significant change in their socio-economic and educational conditions, the political class is unwilling to bring about any legislation in this regard. In a report of March 2011, it was revealed that the Centre seems to be tilted against the inclusion of Dalit Christians and Dalit Muslims in the Scheduled Caste list arguing the need for evidence to show that converts continued to face discrimination of the same degree as before their exit from the Hindu fold.

However, various studies have proved that Dalit converts to Christianity and Islam are thrice discriminated by the State, Caste Hindu society as well as by their co-religionists of non-Dalit background. A recent study was commissioned by the National Commission for Minorities. This scientific study on “‘Dalits in the Muslim and Christian Communities’: A Status Report on Current Social Scientific Knowledge,” was conducted by Prof. Satish Deshpande with the assistance of Geetica Bapna of the Department of Sociology, University of New Delhi. They submitted the findings in 2008. The study observes, “There is no compelling evidence to justify denying SC (Scheduled Caste) status to Dalit Muslims and Dalit Christians” (page 81).

It should also be remembered that in several cases of atrocities committed against Dalits, majority of the victims were Dalit Christians as in the case of Karamchedu and Tsundur in Andhra Pradesh. These victims were attacked not because they were Christians, but because they were Dalits and “Untouchables”. Therefore, the problem of Dalit converts to Christianity and Islam is more a social problem than a religious one. Despite their conversion, their socio-economic status has not changed. Rather, it has worsened their condition without the government affirmative action and protection. While Hindu, Sikh and Buddhist Dalits are eligible for job reservations, electoral representation, reservation in professional and educational institutions and other statutory benefits, including protection under the Protection of Civil Rights Act 1955 as amended in 1976 and the SC/ST (Prevention of Atrocities) Act of 1989, Dalit Christians and Dalit Muslims are denied these privileges. Therefore, the struggle of Dalit Christians and Dalit Muslims is a legitimate demand for equal rights and full citizenship. At the core remains the grievance of injustice.

Till today 12 States and Union Territories have recommended to the Union of India for granting SC status to the Dalits converted to religions like Christianity and Islam. In the year 2000 Bihar State Assembly, in 2006 Uttar Pradesh State government, and in 2009 Andhra Pradesh State government had passed resolution for granting SC status to Dalit Christians and Dalit Muslims. But the Central government is reluctant to take any decision on this important issue.

Today Dalit Buddhists have SC status and benefits after 40 years of struggle. Christian churches and organisations, and Christian leaders and people need to learn from them.

Sources

“Cabinet Must Extend SC Status to Dalit Christians and Dalit Muslims: Churches.”http://twocircles.net/2011mar07/cabinet_must_extend_sc_status_dalit_christians_dalit_muslims_churches.html

“Should Dalit Christians/Muslims be excluded from Reservation?” MAINSTREAM, VOL. XLVIII, NO 17, APRIL 17, 2010.http://www.mainstreamweekly.net/article1977.html

Brindavan C. Moses, “Christian Dalits: Victims of Discrimination.” The Hindu, April 1997.http://dalitchristians.com/Html/P_ChristianDalits0497.htm

Christopher S. Raj, Christian Minority in Indian Multiculture Diversity: Issue of Equity in Identity and Empowerment.

A study on untouchability Still practices in 1,589 villages in Gujarat .

DESPITE laws making it punishable, untouchability continues to exist in the country in a vicious manner. A study titled “Understanding Untouchability: A Comprehensive Study of Practices and Conditions in 1,589 villages”, conducted in Gujarat by the Navsarjan Trust, an organisation that promotes the rights of Dalits, in collaboration with the Robert E. Kennedy Centre for Justice and Human Rights, puts together staggering data on the obnoxious practice that gets neglected by both the State and Central governments. The survey was conducted from 2007 to 2010.

A sample of the findings indicates how deep the rot is. In 98.4 per cent of the villages surveyed, inter-caste marriage was prohibited, and inter-caste couples would be subjected to violence and would often have to leave the village. In 98.1 per cent of the villages, a Dalit could not rent a house in a non-Dalit locality. In 97.6 per cent of the villages, Dalits touching the water pots or utensils of non-Dalits was considered defilement. In 97.2 per cent of the villages, Dalit religious leaders would never be asked to perform a religious ceremony in a non-Dalit area.

The report says it is essential to note that while citizens’ groups and human rights activists have been advocating Dalit rights, the lack of political will has been a major setback to attempts to abolish untouchability. The introduction to the report states: “There is systematic underestimation of the practice of untouchability within modern India; the perpetuation of a wide variety of abuses is allowed to continue with impunity; there is a general lack of awareness and sensitivity to the pervasiveness of the problem; and, consequently, there is limited political will to address and change the situation.”

Martin Macwan of Navsarjan, who spearheaded the study, says, “Navsarjan has experienced first hand that a deeper understanding gained by intensive data collections leads to the development of more effective strategies to address the continued practice of untouchability.” The organisation expects the study will provide critical data for the Dalit movement to shape its interventions at the national and international levels. According to Macwan, untouchability is a deeply complex problem. “It is a crime to practise untouchability, but the caste system is not a crime, which is the root of the problem. People believe it is part of a belief and nothing is wrong with that,” he says.

Most people tend to look at untouchability in isolation, he says, while it is in reality closely linked to the economic, social and political structure. Citing an example, he says the government itself marks out separate burial lands for Dalits. The politician will not oppose it, says Macwan, but rather encourage it for short-term gains.

Although the study was conducted in Gujarat, Macwan and his team believe it is a pointer to a problem that exists across the country on a similar scale. The report says: “The issue of untouchability is one of the most divisive issues in the country’s history and a lived experience of all people in India, including both Dalits, who number over 164 million, and non-Dalit perpetrators and witnesses.”

To meet the study’s goals, an international team of human rights activists, lawyers and academics with distinct areas of specialisation assembled in 2007 to define the diverse set of practices that constitute the legally and almost conceptually amorphous term “untouchability” in a manner that would reflect the experiences Dalits live through every day. Explaining its methodology, the report says the study did not seek Dalit communities’ opinions on the various conditions and practices to which they were subjected (for instance, what they feel about these practices). Accordingly, the resulting research is intended to be a census of untouchability and not a public opinion survey.

The study team conducted the census at the community level and the household level involving the entire Dalit population in a village. A randomisation process selected which locale would be subject to which approach.

Untouchability index

The team spoke to 5,462 respondents in 1,589 villages over a two-year period. The researchers formulated an index of untouchability after identifying 98 distinct practices of discrimination and clustered them into eight categories: 1) water for drinking, 2) food and beverage, 3) religion, 4) touch, 5) access to public facilities and institutions, 6) caste-based occupations, 7) prohibitions and social sanctions and 8) private sector discrimination. The survey was on both vertical and horizontal discrimination, that is, discrimination by a non-Dalit against a Dalit and discrimination by a Dalit against another Dalit. Seeking to understand the pervasiveness of untouchability, the surveyors asked the villagers a series of questions pertaining to their everyday lives, such as “can you get water from the village well without assistance?” The answers helped in collating crucial and relevant data.

A practice most prevalent across all the villages examined (at 98 per cent) was the failure to serve tea to Dalits in non-Dalit households. Even if tea was served, it was done so in a separate cup called “rampatar”—vessel of Ram.

In approximately 96 per cent of the villages, Dalit labourers were served lunch separately from other workers. Any leftover food touched by them was thrown away, untouched by any non-Dalit. Further, in 94 per cent of the villages, when the community gathered, Dalits were asked to sit in a separate place to eat, to bring their own plates, or to eat after non-Dalits had finished.

With regard to practices concerning religious activity, the study suggests that in almost all of the villages surveyed (97 per cent), Dalits were not allowed to touch articles used for religious rituals. In 96 per cent of the villages, non-Dalits would not come to Dalit localities to perform religious services.

The report states that in 90 per cent of the villages, Dalits were not allowed to enter public temples. In 92 per cent of the villages, prasad, or a portion of the food offered to the deity, was thrown to Dalits without any physical contact.

The study also found that in approximately 96 per cent of the cases, it was forbidden for a Dalit to enter an upper-caste house.

In less than half (44 per cent) of the villages, it was considered defilement if Dalits splattered water on a non-Dalit even at common bathing places or when a Dalit washed his or her hands or clothes. Additionally, in 38 per cent of the villages, a Dalit even accidentally touching a non-Dalit was considered defilement.

Some of the clearest forms of vertical caste discrimination were in restrictions with regard to private and public spaces. In 87 per cent of the villages surveyed, Dalits were not allowed to hire cooking pots for wedding ceremonies. Further, Dalits could not use the services of local barbers (in 73 per cent of the villages), potters (in 61 per cent of the villages) and tailors (in 33 per cent of the villages).

In 29 per cent of the villages, Dalits were denied access to common wells or taps, and in 71 per cent of the villages, there was no water tap in the Dalit area of the village. “Given that water is essential for so many aspects of life—especially in a rural context —this form of discrimination is especially inhuman. Particularly astounding is that, in 10 per cent of the villages, Dalits were not able to receive the services of the village’s private doctor, even though failure to do so is potentially fatal,” says the report.

Horizontal discrimination

The researchers also highlight a few practices that are not in the index. For instance, in 95.8 per cent of the villages, Dalits belonging to a dominant sub-caste would enforce the practice where lower sub-caste Dalits must remove carcasses. In 92.4 per cent of the villages, all Dalits did not have access to Dalit burial grounds. In 91.4 per cent of the villages, lower sub-caste Dalits had to collect the clothes discarded at burials, and they are expected to wear them as their clothing. Dalit children were always segregated and made to sit separately in classrooms.

Akin to vertical discrimination, but apparently not as severe, is the discrimination by a Dalit against another Dalit. The report says that in almost all villages, lower sub-caste Dalits had to sit separately from the rest of the Dalit community during special meals. In 78 per cent of the villages, lower sub-caste Dalit farm workers were not provided with water on a higher sub-caste Dalit’s farm. “With regard to perhaps the most valued of resources, those at the bottom are consistently discriminatory toward others who share their plight,” the report says.

Another most prevalent form of horizontal discrimination concerns religious activity. Specifically, in 80 per cent of the villages, lower sub-caste Dalits were not allowed to sit with higher sub-caste Dalits when a religious discourse was on even if the discourse took place in the home of a Dalit.

In 64 per cent of the villages, despite there being a law that reserves a certain proportion of seats for Dalit panchayat members relative to the Dalit population, including having a provision to elect a Dalit head of the local governing council, lower sub-caste Dalit members of the panchayat had to often sit on the floor.

Other forms of discrimination include Dalit midwives refusing to assist lower sub-caste Dalits or some others refusing to be treated by lower sub-caste nurses. An important area of concern is Dalits’ access to gauchar land, a public grazing area, which is required for their livelihood. In 59 per cent of the villages, gauchar land access was restricted to lower sub-caste Dalits. In some cases, lower sub-caste Dalits were not allowed to dance at a Dalit-specific village celebration.

Radical changes required

The study emphatically points out that “understanding untouchability is crucial to ending untouchability. Without understanding the problem, the Government of India will never be able to fully address the issue and fulfil the human rights obligations owed to Dalit citizens.”

It makes several critical points about the current status of untouchability. Given the situation at the panchayat level where a Dalit cannot even sit on a chair, reservation is not enough, it says. Additionally, India’s human rights obligations are deficient, say the researchers. “Faced with poverty, oppression and exploitation, Dalits have a very difficult time reporting atrocities or other violations of law and realising their constitutional right to non-discrimination,” says the report.

The Navsarjan Trust believes that the data provided could be used to make effective intervention towards eradicating untouchability in India.

Printable version | May 1, 2014 1:59:09 PM | http://www.frontline.in/social-issues/social-justice/another-gujarat-model/article5958923.ece

SCs & STs (PoA) ACT 1989,

AMENDMENT ORDINANCE, 2014

THE SCs & STs (PoA) ACT: A HISTORICAL SKETCH!!

HOW IT CAME INTO EXISTENCE!

The Parliament found the PCR Act 1955 and the normal provisions of the Indian Penal Code inadequate to deter such heinous crimes. Hence, it passed The SCs and STs (PoA) Act, 1989and Rules 1995; ensuring heavy penalties on dominant caste perpetrators of atrocities and onpublic servants who willfully neglect their duties to implement the Act. This was implemented in furtherance of the constitutional promises contained in Art 21 (Right to Life), Art 17(Abolition of ‘untouchability’), and Art 46 (mandating the State to protect SCs and STs formal forms of exploitation and social injustice).

Over the years SCs and STs (Prevention of Atrocities) Act, 1989 is widely acknowledged as landmark legislation in the journey to end injustice, violence and atrocities against SCs and STs. The basic objective and purpose of this more comprehensive and more punitive piece of legislation was sharply enunciated when the Bill was introduced in the Lok Sabha:

The existing laws like the PCR Act 1955 and the normal provisions of the IPC have been found to be inadequate to check and deter crimes against them committed by non-SCs and non-STs… It is considered necessary that not only the term ‘atrocity’ should be defined; but also stringent measures should be introduced to provide for higher punishment. It is also proposed to enjoin on the States and UTs to take specific preventive and punitive measures…to provide adequate relief and assistance to rehabilitate them.”1

REASONS FOR PROPOSED AMENDMENTS TO POA ACT?

IDENTIFYING KEY AREAS OF CONCERNS!! LACUNAE IN THE POA ACT!!!

Over the past 23 years since it came into effect, this Act has served as a precious tool for Dalits and Adivasis to assert their rights to dignity, equality, life and security in all matters related to their social status and livelihood concerns. Despite the deterrence assured by the Act, legal justice remains out of reach for a majority of victims largely because of poor implementation of the Act. Victims confront hurdles at every stage of the legal process – from registration, investigation and charge sheeting, to the trial stage. The conviction rates under the Act remained low:

v   Certain forms of atrocities, though well documented, not covered by the Act.

v  Several offences under the IPC committed frequently against SCs and STs by non SCs and non STs, on the ground that the victim was SC or ST not covered in the Act.

v  Public accountability provisions under the Act not outlined in greater detail.

v   Implementation of the Act suffered from the following problems:

§ Procedural hurdles such as non-registration of cases.

§ Procedural delays - in investigation, arrests and filing charge-sheets

§ Delays in trial and low conviction rate

§ Procedural delays in providing relief and rehabilitation to victims, and inadequate

v  rates of compensation

PROCESS OF DEVELOPING AMENDMENTS!

In the light of field experiences and efforts during the past many years, National Coalition for strengthening PoA Act, initiated by National Dalit Movement for Justice comprised of many alit organizations, Dalit activists and experts reviewed the performance of the Central and State governments in implementing the Act and realizing its objectives during the past 24 years and worked closely with National Advisory Council (NAC) and the outcome of all the review and recommendations of NAC was, set of amendments proposed by Ministry of Social Justice to the parliament in the form of Bill on 12.12.2013 to amend the Act and make it strong and effective. But even after introduction of the Bill of amendments in the Parliament, same was not taken as an agenda for discussion and passing in the last parliamentary session of the present government. Therefore, once again the Coalition members found it appropriate to put their energies and efforts and met many Parliamentarians, including ministers and major political parties with a demand for passing of the amendments in the parliament.

The final outcome of all these efforts of relentless work done by the Coalition was the introduction of Ordinance to amend the PoA Act. The same has been notified in The Gazette of India (Registered NO. DL-(N)04/0007/2003-14), Extraordinary Part- II, Section-I, published by Ministry of Law and Justice (Legislative Department) on the 4thMarch, 2014.

KEY FEATURES OF THE ORDINANCE!

§  Addition of following new category of offences to the existing punishable offences. In addition to the existing offences listed in the Act, following new offences added. To cite a few: tonsuring of head, moustache, or similar acts which are derogatory to the dignity of Dalits and Adivasis; garlanding with chappals; denying access to irrigation facilities or forest rights ; dispose or carry human or animal carcasses, or to dig graves; using or permitting manual scavenging; dedicating Dalit women as devadasi; abusing in caste name; perpetrating witchcraft atrocities; imposing social or economic boycott; preventing Dalit and Adivasi candidates filing of nomination to contest elections; hurting the modesty of Dalit/Adivasi woman by removing her garments; defiling objects sacred to SCs and STs; touching a women or uses words, acts or gestures of a sexual nature against women.

§  Addition of IPC offences committed against Dalits or Adivasis as punishable offences under the POA Act. Presently, only those offences listed in IPC as attracting punishment of 10 years or more and committed on Dalits/ Adivasis are accepted as offences falling under the POA Act. A number of commonly committed offences (hurt, grievous hurt, intimidation, kidnapping etc.) are excluded from the Act. This provides loopholes for the perpetrators of crime to escape from being punished for these commonly committed crimes. Therefore a Schedule of list of IPC offences is provided in the amended act.

§  Establishment of Exclusive Special Courts and Special Public Prosecutors to exclusively try the offences falling under the POA Act to enable speedy and expeditious disposal of cases. Presently, Special Courts and Public Prosecutors also deal with other cases besides atrocity cases. Consequently, cases are kept pending for long time. Thus victims are denied justice or speedy justice. Establishment of an Exclusive Special Court for one or more districts and Exclusive Public Prosecutor is proposed;

§  Power of Exclusive Courts to take cognizance of offence and completion of trial in 2 months. Courts so established or specified shall have power to directly take cognizance of offences under this Act and the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet.

§  Addition of chapter on the ‘Rights of Victims and Witnesses’. As of now, the Act recognizes a few rights of the victims and witnesses. This is insufficient. Therefore many other essential rights are covered so as to impose duty and responsibility upon the State for making arrangements for the protection of victims, their dependents and witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence.

§  Defining clearly the term ‘willful negligence’ of public servants at all levels, starting from the registration of complaint, and covering aspects of dereliction of duty under this Act. Section 4 of the present Act does not clearly define what constitutes ‘willful negligence’ of public servants. Hence, ‘willful negligence’ is defined by listing specific transgressions of law: for example, police officers not putting downaccurately in writing the victim’s complaint; not reading out to the victims what has been recorded prior to getting their signature; not registering FIR under the Act; not registering it under appropriate sections of the Act; etc.

§  Addition of presumption to the offences –If the accused was acquainted with the victim or his family, the court will presume thatthe accused was aware of the caste or tribal identity of the victim unless proved otherwise.

HOW THE ORDINANCE WILL BENEFIT THE COMMUNITY?

The amendments proposed in the Parliament seeks to benefit several issues which in past remained difficult for majority of the victims and the witnesses, such as non-registration of cases; delays in investigation, arrests and delayed filing of charge-sheets; and delays in trial.

It will also benefit the Dalit victims now to register their complaints with newer forms of atrocities, known to be occurring in recent years, which were not covered by the Act, including some of the IPC offences committed frequently. In the proposed amendments public accountability provisions are outlined in greater detail and public servants if harassing the victims and witnesses can be penalized in the same special courts through administrative recommendations. Specifically the amendments will benefit in completion of the trial with Exclusive Special Courts and Exclusive Public Prosecutors with in a period of 2 months on day to day basis. Overall the amendments will benefit in improving conviction rate and low acquittal rate under the PoA Act.