Indian Supreme Court curbs one of the world’s most powerful anti-discrimination laws

The vitriolic anger directed at the PoA might mean that Indian society is not entirely ready to face the depth of its own ingrained prejudice.

Sandhya Fuchs
26 May 2018
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Candle light vigil to protest death of Dalit protestor during Bharat Bandh,Kolkata, West Bengal, India, April 4, 2018. Saikat Paul/ Press Association. All rights reserved.On April 2, 2018 violent protests under the banner ‘Bharath Bandh,’ (‘Shut Down India,’) broke out across northern and central India, resulting in the closure of public transport systems, schools and shops. Ten people lost their lives, dozens were injured and hundreds of protestors were arrested. The agitations were a response to an unanticipated judgement by the Indian Supreme Court, which curbed the Scheduled Castes/Scheduled Tribes Prevention of Atrocities Act (PoA), one of the most powerful anti-discrimination laws in the world.

First introduced in 1989, the PoA declared verbal, physical or ritual violence against India’s former untouchable community (Dalits / Scheduled Castes) and tribal population (Adivasis / Scheduled Tribes) criminal acts.

The law outlined strict punishments for such offenses, stating, for example, that anyone who causes ‘physical harm or mental agony’ to members of the aforementioned groups ‘shall be punishable with imprisonment for a minimum of six months and up to five years’. In addition the PoA introduced a number of exceptionally stringent stipulations: a blanket ban on ‘anticipatory bail’;[1] the immediate arrest of accused parties; and the possibility of prosecuting public servants guilty of ‘neglecting their duties’. As a result of these harsh punitive measures and the unprecedented agency the law awarded Dalits and Adivasis, the Prevention of Atrocities Act has always been a highly controversial piece of legislation.

P.S. Krishnan, former Secretary to Union Ministry of Welfare and original author of the PoA, emphasised that ‘since its inception someone has always been trying to abolish this law’. Now, the recent Supreme Court judgement, issued on March 20, has significantly weakened, or entirely scrapped, many of its exceptional features. In particular, it reinstituted anticipatory bail and stated that in the future cases could not be registered without a preliminary police inquiry, in order to prevent what the court deemed, the ‘rampant misuse’ of the act.

A. K. Goel and U. U. Lalit, the judges behind the Supreme Court verdict, justified the new provisions by pronouncing 15-16% of the complaints filed under the act ‘false’ accusations. Dalits and Adivasis were said to register untruthful or invented cases against innocent upper caste members in attempts to procure financial and social advantages. As such the judges warned that the act may be reinforcing ‘casteism’ rather than alleviating inter-caste conflict to pave the way for a more equal social order.

‘Let me be honest, as soon as we even see a case filed under this atrocities act, we tend to assume that it is fake,’ a high-ranking official in the Rajasthani police force candidly disclosed. ‘I know that means we might be biased,’ he continued, ‘but so many of these investigations get filed away as false after the police inquiry that we don’t really have a reason to take the accusations seriously any more,’

Yet, my own ethnographic research on the implementation of the Prevention of Atrocities Act in Rajasthan – a state that in 2016 ranked third in the country for crimes against Dalits and Adivasis according to the National Crimes Record Bureau (NCRB) – tells a different story. Surveying and tracing 40 cases filed under this law, I found that the phenomenon of the ‘false’ case is highly complex, politically charged and can rarely be reduced to straightforward categories of intentional deception or pure veracity.

Village dispute

Take a dispute in a village two hours north of the city of Udaipur. The controversy had arisen between the Dalit community and members of the numerically and financially dominant caste group (Rajputs). One Dalit family had wanted to add a balcony to their newly built house. However, the Rajput dominated village council decreed that construction of the balcony must be stopped. Drawing on outlawed ideas of impurity and untouchability, the council expressed concern that if water fell from the balcony onto pedestrians passing underneath, these passers-by would become contaminated.

When the Dalit family in question refused to comply and built the balcony anyway, the Rajputs staged a social boycott and ostracised the Dalit family from village life. As a reaction to the boycott the Dalit family then filed a case under the dreaded Prevention of Atrocities Act. A police investigation was launched that found the Dalits’ complaint to be legitimate but, soon after, the police officer in charge was suddenly transferred. Following his replacement, the police inquiry was re-opened and the second police report denounced the accusations as ‘baseless’ and ‘untruthful’.

A constable at the police station where the case had originally been registered eventually helped to shed light on this seemingly confusing series of events. It turned out that some of the men listed as the main accused in the initial police report (FIR), were distantly related to an influential politician in the district. The accused had contacted the politician, who, in turn, had promptly called the station instructing the officer in charge to halt ‘this ridiculous investigation’ and get rid of the constable who had issued the report in favour of the Dalit complainants. A second investigation then arrived at conclusions more palatable to the politician and his caste-brethren.

The circumstances surrounding the aforementioned police investigation are suspect at best. Even if we acknowledge that cases such as this one represent challenges in terms of locating adequate legal evidence to support the claims of the lower caste litigants, the nonchalant manner in which the final police report brushed the complaint off as ‘baseless’ is worrying. The Udaipur case was eventually filed away as ‘false,’ and has gone down in history as yet another instance of legal misuse. Still, a closer analysis of the events should lead us to critically reflect on the claims about case legitimacy made by the Supreme Court.

‘False’ cases

Policy changes emphasising the pervasiveness of the ‘false’ case are often blind to the complex dynamics that cause an allegation to be classified as truthful or fraudulent. They further divert attention from very real experiences of caste-based discrimination that continue to characterise the lives of many Dalits and Adivasis in contemporary India. While article 17 of the Indian constitution officially abolished practices of untouchability in 1950 and the country has introduced affirmative action policies in higher education and government sectors for Adivasis and Dalits, caste prejudice, practices of social exclusion and forms of ritual verbal and physical violence are still alive in many parts of the country. Horrific crimes like the 2006 Khairlanji murders in Maharashtra that cost a Dalit family their lives and the 2015 Dangawas massacre in the Nagaur district of Rajasthan suggest that caste-related atrocities are unlikely to disappear in the near future. Nevertheless, the new Supreme Court ruling creates the illusion that the tables have turned and that historically privileged groups now find themselves at the mercy of legal schemes perpetrated by the greedy and marginalised. 

While isolated instances of such misuse undoubtedly occur, the far more disconcerting issue is that the in-transparency of criminal investigations makes it exceedingly difficult for courts to discern when and how manipulation of legal procedure has transpired. As cases filed under the PoA unfold, the realities of affected individuals and communities regularly come into conflict with the goals of caste-based interest networks or public institutions like the police. Additionally, sufficient and admissible legal evidence can be difficult to obtain for the socio-economically weak.

‘Not a virgin’

This was particularly evident during a criminal investigation for a gang rape case involving a 16 year-old Dalit girl in the state capital Jaipur. After examining the severely bruised and injured victim, the doctor on the case issued a startling medical testimony. The report concluded that the girl was ‘not a virgin.’ However, it continued, there was ‘no proof de-virginisation was the result of rape.’ Considering the state of the victim, her age and the fact that one of the four accused men openly admitted to the assault, the physician’s inference was disquieting. When I expressed astonishment, a local activist affirmed my misgivings. ‘This one boy’s father is the sarpanch (village head) in our neighbouring village, they paid off the doctor, so now there is no evidence,‘ she said with a defeated shrug of her shoulders.  

While India’s police force is often (and frequently rightfully) blamed for being corrupt and settling criminal investigations in favour of the party offering the bigger cheque, this story from Jaipur highlights the many pillars of legal evidence, which are routinely tampered with to undermine inquiries, secure acquittals or ensure that victims never proceed with case registration.

At times even responsible police officers can become entangled in opaque, caste-based power networks. The organisational pyramid of the Indian police, a system whereby higher-ranking police officers are recruited through a different scheme than the constables posted at the police stations, also contributes to legal in-transparency. An immense communication gap exists between the police officers who see criminal investigations unfold and those who make policy recommendations based on the resulting reports. Hence, those holding influential positions within the police force and even judges usually lack a true understanding of the dynamics within a community that can turn a truthful account into a false case.

Imperfect translations

When the Supreme Court declared that more than a quarter of cases registered under the PoA are based on untruthful accusations, instances like the ones I encountered form part of the statistic: cases that somewhere along the line become part of political agendas, cases that involve evidence tampering and cases where witnesses are bought off. When doctors are bribed into falsifying reports and the police are repeatedly caught at a crossroads of civil and political interests, legal evidence can be impossible to come by.  

Ultimately, the truth or falsity of cases under the PoA is defined by a multifaceted set of social relationships and power dynamics that often remain hidden from the eyes of the law and of lawmakers. Goel and Lalit’s judgement ignores a myriad of administrative and political issues in India contributing to a situation where experienced realities of violence and discrimination often fail to translate into a sound legal case. This, undoubtedly, is a wider challenge in relation to anti-discrimination law everywhere. It is a problem that arises when complex events are squeezed through imperfect administrative channels: a challenge that arises when culturally specific social and political interactions need to take a standardized form to be judged as law. However, using this imperfect translation process as the basis for amending law seems misguided.

Secretly prevalent attitudes

Accordingly, the Supreme Court’s assessment that measures like the Prevention of Atrocities Act heighten casteist tensions should be taken with a grain of salt. On the one hand, the interminable communal push-and-pull around cases filed by Dalits and Adivasis and the particular vehemence with which the act regularly comes under political scrutiny should be indicator enough that casteist sentiments are alive and well in India. Legislation like the PoA simply shines a light on secretly prevalent attitudes.

On the other hand, we also need to acknowledge that the vitriolic anger directed at the PoA might mean that Indian society is not entirely ready to face the depth of its own ingrained prejudice. However, the path to achieving this goal can hardly be paved if lawmakers simply reverse measures that bring these tensions to the forefront. We have to wonder if rather than curtailing a law that has represented a unique opportunity for marginalised communities to take up the fight against their own disadvantage, lawmakers would do better addressing prevalent issues of legal implementation and transparency?

[1] Section 438 of the Indian Criminal Procedure Code allows individuals to request bail in expectation of being accused of a crime.

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