RF_SOS_5_SUDHA.pdf
Media
- extracted text
-
RF_SOS_5_SUDHA
Casteism: A Social
Determinant of Health
Dr. Smita Pakhale, MD, FRCPC, MSc (Epi & Biostat)
Associate Scientist - Ottawa Hospital Research Institute
Assistant Professor - University of Ottawa
Staff Respirologist - Division of Respiratory Medicine
The Ottawa Hospital, 501 Smyth Road
Ottawa, ON, K1H 8L6, Canada
Phone: 613-737-8899 Ex. 79428
Fax: 613-739-6807
email: spakhale@ohri.ca
Rguie 2. Conceptual framework of the soda! cfeTennInaircs of health
SOOOECONGMK
POLITICAL
CONTEXT
♦ Matroecotwrafc
Policies
■ soda! Potoes
labour Manfex
Housra, Lana'
• PtilicPolJcfes
fOLEailax
Wifi, SotJaf
SocoBconomlcl
(casteism)
Social Class
Gentle!
Eihnldry lacten]
’EducsJon’
Mstefiai Cltcumstances
ILvmjariifWitrtoj'
□onaJrJBm. .fom'
Arafefillty etc.}
Beh®l(HS and Biological
Facto ts
Psychosocial Factors
Social Cohesion a sndal Caple
ocnrjHtlim
* Culture and
Societal Valises
income
Health System
STRUCTURAL DETERMINANTS
OF HEALTH INEQUITIES
SojrtE Sofar xd frwn4 MW
INTERMEDIARY
DETERMINANTS OF HEALTH
IMPACT GN
EQUITY LN
HEALTH AND
WELL-BEING
What is casteism?
Discrimination of one human being by
another based upon ones ‘caste’
How it is different than racism?
• Castism is between individuals who are:
- From the SAME RACE
- Has physical similarities (hair & skin color etc)
- Speak similar/same language
- Dress up similarly
- Eat similar food (when available)
- Enjoy similar festivals & seasons (when $$)
- Pray similar/same gods!!!
Magnitude of Casteism problem?
• > 250 million Scheduled Caste/Scheduled Tribe
(SC/ST) people in India alone (from the so called
‘lowest of the low caste’)
• Pakistan
• Nepal
• Bangladesh
• Sri Lanka
• Japan
• ...even in UK, USA, Canada, Australia, New
Zealand etc. with migration of population
Equality Act 2010 in UK
Included caste as a protected characteristic
against which discrimination can not be
done and thus bans unfair treatment
Evidence of casteism as an
important SDH?
2010 - National Institute of Economic and Social
Research (a study commissioned by the
Government Equalities Office, UK)
- identified that caste discrimination and harassment
was by higher castes against the lowest castes in UK
- caste discrimination is not religion specific and is
subscribed to by (and affects) members of any or no
religion
- Hence, Equality Act 2010 provisions on religious
discrimination cannot cover caste discrimination and
harassment as effectively as caste-specific provisions
would
More evidence....
SEWA: (Self-Employed Women’s
Association working for the poor)
- Membership in India +++SC/ST
- Latest study findings:
• SC - almost twice as likely to have income decline
in the past year where as Hindus (upper-caste
Hindus in particular) reported increase in income
• SC - four times as likely as those from upper
castes to expect fall in their income in the coming
year....insecurity
More evidence...
• Half of all 500,000 maternal deaths per
year occur in South and South-East
Asia...who are these mothers?
• Countries in the Indian sub-continent
contribute two thirds of the global burden
of malnutrition who are these people?
More evidence....
• Preventable diseases like blindness, TB,
disability more common in SC/ST
HUMAN RIGHTS EDUCATION SERIES -1
"UNTOUCHABILITY AND ATROCITIES"
RIGHTS AND REMEDIES UNDER
LAW
Prepared by
N.R. MADHAVA MENON
Published in Public Service by
LEGAL SERVICES CLINIC
NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
BANGALORE-560 001.
"ALL HUMAN BEINGS
ARE BORN FREE AND EQUAL
IN DIGNITY AND RIGHTS"
ARTICLE I, UNIVERSAL DECLARATION OF HUMAN RIGHTS
Acc. No.
Class Code :
DOCUMENTfiTiON
CENTRE
INSA^W
international services association
5/1 BENSON CROSS ROAD,
BENSON TOWN, BANGALORE-560 046.
«■ 3536633, 3536299.
FAX: 91 -80-3536633.
__
CONTENTS
Page No.
W-REFACE
INTRODUCTION
1
Beneficiaries of the Law:
Scheduled Castes and Scheduled Tribes
Constitutional Foundations and
2
Importance of Anti-untouchability Law
Offences under the Protection of Civil Rights Act
Special Rules of Evidence and Procedure for Trial
3
'4
5
Accountability of State/Central Governments for Enforcement
Offences under S.C/S.T. (Prevention of Atrocities) Act
6
8
Special Court and Preventive Provisions
Special Administrative Measures,
Procedures and Presumptions
11
e
About the National Law School of India
The Legal Services Clinic at NLSIU
12
PREFACE
It is perhaps unnecessary to have a preface for a small booklet. The introduction
which follows does explain the importance of the subject and the objects with which
National Law School of India University has undertaken the publication. Neverthless,
being the first attempt in a series intended to bring law to the people and promote a
new legal culture towards the social revolution promised by the Constitution of India,
it may not be out of place to share some thoughts through this prefatory note on what
we hope to accomplish by this exercise.
Universities are admittedly centres of scholarship and learning. Are they also
/“^titutions for service and change ? Can they be instruments for accelerated social
development, instruments for fighting injustice, poverty and ignorance ? Contem
porary opinion seems to be that they can be and they ought to be. However, there
are no clear-cut policies and models yet for achieving this goal except what is
canvassed through the extension and continuing education programmes as well as
the National Service Scheme. Agricultural Universities opened up new possibilities
in this direction during 1960s and ‘70s. The "Lab to Land" experiment is another
development of the 1980s. Institutions of legal education, of which we have more
than 360 in India, have been largely out of such experiments till 1980 when the
Committee for Implementing Legal Aid Schemes (CILAS) tried, with modest suc
cess, to draft Law schools in the scheme of legal aid to the poor. Today, after a
decade-long effort, CILAS could not involve more than a score of law colleges in the
exciting experiment of "legal aid" in "legal education". It is a matter of surprise to
find that law schools have not bought the idea despite the immense potential the
experiment offers for practical education of the law students.
When the National Law School of India was set up in 1987 at the instance of
the Bar Council of India as the first Law University in the country, it was envisaged
that it would act as a pace- setter in reforms in legal education and would provide
the impetus, the know-how and the leadership for re-structuring the system. As if to
^facilitate this role of NLSIU, the University Grants Commission recognised National
!. yw School as one of the two Universities in India to give training and refresher
courses for law teachers under its Academic Staff College programme. The Law
School seized the opportunity and undertook a variety of programme creating new
hopes and possibilities not only for education for the profession of law but also for
public legal education. One such programme of public legal education is the
simplification and dissemination of law relevant to protect Human Rights particularly
of the weaker sections of people. This booklet is the first publication in this series
being released on the Human Rights Day. The booklet is being brought out in
different languages to facilitate easier access to the persons intended.
Mere publication of relevant law in simple language will not be sufficient to serve
the cause of public legal education. As such, the University has simultaneously
launched a programme of Para-legal training through which comprehensive under
standing of the law and legal processes is imparted to social activists and others
working with the people at the grass root level. In the process, the University is also
building bridges with the community in general and between the community and the
legal aid apparatus in particular.
The National Law School will be happy to collaborate with other educational
institutions as well as with social service organizations for developing the strategy
of service with education, an aspect long neglected in our developmental policies
and approaches.
This booklet is published out of the financial assistance extended to the Legal
Services Clinic of NLSIU by the Committee for Implementing Legal Aid Schemes,
Government of India and the Karnataka Legal Aid Board. We express ourthanksfor
the support. We do hot put a price on these publications. However, organizati^j
ordering copies may like to make a contribution towards the costs which would help
production of more such booklets for public legal education. Copies can be had from
the Convenor, Legal Services Clinic, National Law School of India, Central College
Campus, Bangalore-560 001 by writing the number of copies required and enclos
ing a contribution by way of a bank draft in favour of the National Law School of India
University, Bangalore. (The cost of production is roughly Rs. 4 per copy)
The next publication under preparation in this series is a pamphlet on the
“Citizen and the Police”. This will be followed by subjects such as Rights of Children,
Women’s Rights and legal protection of handicapped persons.
Dr. N.R. Madhava Menon
Bangalore
10 December, 1989
Director
National Law School of India
INTRODUCTION
Undoubtedly, the practice of untouchability and the perpetration of atrocities
against the most disadvantaged sections of Indian Society, the Scheduled Castes
and Tribes, are continuing threats to human dignity and national integrity solemnly
promised by the Constitution of the Republic forty years ago. Today, according to
official statistics and newspaper reports, these inhuman practices have increased
and have assumed various dimensions atleast in some parts of the country.
There can be many historical, sociological and political explanations to this
'^elopment which, some persons argue, is a temporary phase in social change
bSst contained through pursuasion, education and economic amelioration of the
status of the target groups. However, in view of the obnoxious nature of the practice
of untouchability and the degree of wickedness involved in the atrocities against the
weaker sections, the constitution and the Laws have adopted the strategy of fighting
the evil through the criminal process with all the might the State could command.
This strategy has led to the adoption of two important social legislations, namely,
"THE PROTECTION OF CIVIL RIGHTS ACT, 1976" (earlier known as the Un
touchability Offences Act, 1955) and "THE SCHEDULED CASTES AND THE
SCHEDULED TRIBES (Prevention of Atrocities) ACT, 1989”. Together with the
provisions of the Constitution, these two laws form the bulwark of human dignity and
social justice so far as the erstwhile "untouchables" are concerned.
Laws are not self-executing. They need an institutional apparatus and human
beings acting as administrators, policemen, prosecutors, judges, social activists and
media persons. The performance of the law is dependent upon tha level of aware
ness and the degree of motivation these actors of the legal system possess at any
given point of time. Legal effectiveness is also conditioned in a democracy by the
force of public opinion and the initiative of the victims themselves in seeking
protection of the law. Access to justice under our system is available only to those
who are willing to assert their rights under law. Those who do the contrary and suffer
'
1st ice silently are not only discrediting themselves but also inflicting serious injury
to rule of law and human rights which are proud possessions of the Indian Republic.
Human Rights education and social mobilisation for legal action against human
rights violations are therefore the best guarantee for Constitutional democracy and
Rule of Law. Public legal education supported by free legal aid to the poor is an
imperative necessity particularly in a situation where the majority of people are poor
and illiterate, culturally conditioned to live a life of submission and fatalism. The Legal
Services Clinic (LSC) of the National Law School of India University (NLSIU),
Bangalore has taken up an ambitious project on Human Rights Education to be
accomplished in association with other interested agencies in government and
outside firstly, through simplification of laws for popular consumption and secondly,
disseminating legal knowledge through all available means of mass communication.
The LSC of NLSIU is bringing out the first issue of its Human Rights Education
series on civil rights protection and atrocities prevention as it considers the twin evils
as the most reprehensible practices in modern India. The booklet is prepared
keeping in view the minimum needs of information of the consumers of Justice,
though, it is also intended to educate the functionaries of the legal system of their
duties and responsibilities under law. It is hoped that the legal awareness of the
people, the constant vigilance of public spirited citizens and the dynamism of legal
aid personnel would in the near future make a decisive change in the administration
of the two social legislations discussed below to the advantage of the so-called
"untouchables" and to the strengthening of Indian democracy.
BENEFICIARIES OF THE LAW; SCHEDULED CASTES APp
SCHEDULED TRIBES:
The legislations discussed here are intended to protect the people at the bottom
of the caste hierarchies of Hindu Society who have the lowest ritual standing, the
lowest economic position and the heaviest social disabilities. They are traditionally
regarded as "untouchables” who suffered systematic degradation and victimisation,
sometimes worse than slavery. Gandhiji referred to them as Hanjans (Children of
God). Dalits, depressed classes and weaker sections are other expressions com
monly .used to identify the target people. Although untouchables might readily be
identified in a given locality, considerable difficulty exists in developing an all-lndia
standard to distinguish them. Overlapping both caste and religious groupings and
suffering the same social disabilities and oppression are some tribal communities
concentrated in isolated mountainous regions of the country. Modern legal terminol
ogy to identify these groups is the expression "Scheduled Castes and Scheduled
Tribes" or, in short, S.Cs and S.Ts.
The Scheduled Caste category is intended to comprise of those who were
treated as "untouchables" and were put to such disabilities as denial of access to
public facilities and services, exclusion from respectable professions and profitable
occupations, residential segregation, restrictions on movement etc. Early in the
century, Hindu Social reformers started a movement to remove such disabilities atp
bring the depressed classes into the mainstream of national life. The gro6r belonging to this category were first listed (i.e. scheduled) in 1936 for purposes of
giving effect to the provisions for special electoral representation in the Government
of India Act, 1935. At the time of Independance, these groups contained over 50
million persons and nearly 20% of the Hindu population.
The makers of the Indian Constitution also continued the same formula for
identifying the so-called untouchable or depressed classes. Article 341 (1) of the
Constitution says that "the President may with respect to any State or Union Territory.
after consulation with the Governor thereof, by public notification, specify the castes,
races or tribes which shall for purposes of this Constitution be deemed to b0
Scheduled Castes in relation to that State or Union Territory" Similarly, Article 342(1)
provides the procedure for listing tribal communities as Scheduled Tribes in relat'0"
to a State or Union Territory. Conventionally the selection of Scheduled Castes'0'
2
purposes of inclusion in the list was based on "untouchablity", measured by the
degree of incidence of social disabilities. Of late, this basic criterion has been
combined in varying degrees with occupational, educational, economic and religious
tests.
The beneficiaries of the law under review are those who are designated under
the Constitution as Scheduled Castes and Scheduled Tribes irrespective of the fact
whether in a given locality they do or do not suffer one or more of the disabilities
which persuaded the State (Parliament) to adopt a protective discrimination policy
in their favour. This fact is important to remember particularly by law enforcement
personnel as otherwise the purpose of the law stands the risk of being defeated by
extraneous considerations (such as higher economic status of the victim) diluting
(^Jiforcement of the law. An "untouchable" shall not cease to be an "untouchable" for
the purposes of the law if he resides in any locality other than the place mentioned
in relation to him under the Constitution (Scheduled Castes) Order, 1950 or if he
improves his status economically or otherwise.
CONSTITUTIONAL FOUNDATIONS AND IMPORTANCE OF ANTI-UN
TOUCHABILITY LAW
There are very few practices which the Constitution itself declares as crimes
and among those few, untouchability is one. Article 17 declares: "Untouchablity is
abolished and its practice in any form is forbidden. The enforcement of any disability
arising out of untouchability shall be an offence punishable in accordance with law”.
This Article forms part of Fundamental Rights which the State cannot abridge or alter
except in accordance with the Constitution itself.
It is in pursuance of this provision of the Constitution, the Protection of Civil
Rights Act was passed to prescribe punishment for the preaching and practice of
untouchability. The importance of the law therefore is obvious.
Furthermore, in Article 46, the Constitution directs the State in particular "to
protect the Scheduled Castes and Scheduled Tribes from social injustice and all
forms of exploitation". Again, Article 338 directs the President to appoint a Special
/"Officer for S.Cs. and S.Ts. to investigate periodically the working of safeguards in
■ /avour of S.Cs and S.Ts for suitable action by Parliament. The reservation policy
adopted by the Constitution is just one strategy for ameliorating the conditions of the
"untouchables". More importantly, the Protection of Civil Rights Act and the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act are
Constitutionally important in terms of the Preambular promise of social justice and
individual dignity. Hence these two laws could as well be deemed to be part of the
Constitution in terms of its authority and significance. In other words, they are not
like other social legislations which the Executive Government may decide to enforce
according to expediency and availability of resources. No Government, Central,
State or local can neglect or compromise the enforcement of these seminal laws if
they care for the Constitution.
3
OFFENCES UNDER THE PROTECTION OF CIVIL RIGHTS ACT(PCRA):
What are "civil rights"? PCRA defines civil rights as those accruing to a person
by reason of the abolition of untouchability by the Constitution. The consequence of
abolition of untouchability is the redemption of equal rights for all as guaranteed by
Article 14 of the Constitution. Disabilities have been replaced by rights and the
conduct of those who continued to enforce disabilities has been converted into
offences under PCRA. The major offences under PCRA and the punishments
prescribed therefor are as follows:
(a) Enforcing religious disabilities: Preventing any person from entering
any place of public worship or from offering prayers or using the waters
(on the ground of untouchability) is punishable with imprisonment betweec
one month and six months and fine between 100 and 500 rupees (Sectio.'
3);
(b) Enforcing social disabilities: Enforcing disability (on the ground of
untouchability) with regard to access to shop, hotel or places of public
entertainment, or the use of articles kept therein for public use, or the
access to or use of any public conveyance, public residential premises
and public conveniences etc. is punishable with same terms of imprison
ment and fine as above. Enforcing any disability includes any discrimina
tion on the ground of untouchability (Section 4);
(c) Refusing to admit persons to hospitals: Refusal of public hospital
facilities and discrimination after admission (on the ground of un
touchability) are also punishable with the same punishments as above
(Section 5);
(d) Refusing to sell goods or render services: If on ground of un
touchability any one refuses to sell any goods or refuses to render any
service available to other persons in the ordinary course of business are
also offences punishable as above (Section 6);
(e) Insulting, abusing and obstructing behaviour: Acts directed
towards preventing persons from enjoying civil rights, or boycotting or
injuring them for having exercised any such right, encouraging people tc'l
practice untouchability, or insults or attempts to insult (on the ground ot'
untouchability) a member of the S.C. is punishable with same punishments
as above. Encouraging the practice of untouchability is said to include its
practice as well as its justification on historical, religious or on any other
ground (Section 7);
(f)
Unlawful compulsory labour: Compelling a person (on the ground of
untouchability) to do scavenging, sweeping, carcass removing or such
other job is also punished as above as such acts "are deemed to be
enforcing a disability arising out of untouchability" (Section 7-A);
(g) Abetment of offence: Abetting of any offence under the PCRA is
punishable with the punishment provided for the offence (Section 10);
4
(h)
Neglecting investigation of offence by public servants: The Act
makes it punishable as abetment the conduct of public servants who
wilfully neglect the investigation of offences under the Act. (Section 10);
(i)
Additional punishments for certain offences: Any person con
victed of an offence under the Act a second time is punishable with
imprisonment between 6 months and one year and fine of not less than
two hundred rupees. For the third offence the imprisonment is to be not
less than one year (Section 11). The Court can additionally order cancel
lation or suspension of licenses in the case of conviction for offences
relating to refusal to sell goods or render services etc. (Section 8);
A unique form of punishment prescribed by the Act is in respect of
involvement of the inhabitants of an area in the commission of any of the
(/)
above offences or their abetment, in the harbouring of persons concerned
with such offences, in the suppressing of evidence or failing to render all
assistance within their power. The State Government in such cases can,
by notification in the Official Gazette, impose a collective fine on such
inhabitants and apportion the sum payable by each. (Section 10-A);
(j)
Offences by Companies: Companies, firms or other similar associa
tion of individuals if found guilty of an offence under the Act, every person
who at the time of the offence was in charge of the affairs of the company
shall be deemed to be guilty of such offence unless he proves that the
offence was committed without his knowledge or that he exercised all due
diligence to prevent the commission of such offences (Section 14).
SPECIAL RULES OF EVIDENCE AND PROCEDURE FOR TRIAL:
Aware of the vicissitudes and uncertainties of ordinary criminal procedure and
determined not to keep the untouchability related law a mere 'paper-tiger', the PCRA
has enacted special rules of procedure and evidence for the trial of offences under
the Act. These provisions are, in brief, as follows:
(a)
Presumption of acts done on the ground of untouchability:
The definition of offences under the Act invariably say that they are offences
(~7ily done ”on th® ground of untouchability". It is a matter difficult to prove in a court
of law unless the courts are prepared to infer it as a fact from the circumstances. To
enable courts to do so in the normal course, the Act stipulates that if an offence
described in the Act is Committed in relation to a member of a Scheduled Caste,
“the court shall presume, unless the contrary is proved, that such act was committed
on the ground of untouchability" (Section 12). In other words, whenever a Scheduled
Caste person is a victim to the social, religious and economic disabilities enforced
by another person or persons, the presumption is that it was done "on the ground of
untouchability" as required under the Act. The burden of proving it otherwise lies on
the defendant.
5
(b)
Offences under the Act are cognizable:
Every offence under the Act is congnizable which means that they can be
investigated by the police on their own and if neccessary arrests can be made without
warrant (Section 15)
(c)
Offences are triable summarily:
Except where the offence is punishable with more than a minimum term
exceeding three months’ imprisonment, all offences under the Act are triable
summarily by a Judicial Magistrate. The most expeditious form of trial under the
Indian Criminal Procedure is the summary trial which is extended to trial of offences
under the Act. (Section 15).
Together with cognizable nature, summary trial and presumption of genesis of
conduct on untouchability, the PCRA presumably made a rather strong judicial
arrangement for making the guilty punished expeditiously and with relative certainty.
(d)
Benefit of Probation not available to offenders:
Ordinarily in respect of violations of social legislations, the lenient alternative of
probation is available for offenders and is usually recommended in sentencing by
criminal courts. However, in view of the extreme seriousness of offences under the
PCRA, probation is totally denied to all persons convicted for offences under the Act
except for those below 14 years of age (Section 16-A)
(e)
Protection to Enforcement officials acting in good faith:
Being a pro-active legislation, Parliament expects the administration to initiate
action under the Act before it is too late. This might in some cases lead to precipitate
and avoidable action from enforcement officials which, in turn, might cause unjus
tified injuries to persons. Unless the officials are protected against possible legal
proceedings on account of their actions under the Act, enforcement may be delayed
or diluted. To avoid such possibilities, the Act stipulates that acts done in good faith
shall not be a ground for any legal action against the Central or State Government
even if any damage is caused to any person (Section 14-A). Further, if any public
servant is alleged to have committed the offence of abetment of an offence under
the Act while acting in the discharge of his official duty, PCRA provides that previous •
sanction of the concerned Government shall be taken before launching prosecution'.
against him (Section 15 (2))
ACCOUNTABILITY OF STATE/CENTRAL GOVERNMENTS FOR EN
FORCEMENT:
Under the Indian Constitutional scheme, responsibility for en!-> < ■’ment of
Criminal laws is primarily with the State Government. Many welfare laws do not get
enforced partly because of the lack of political will on the part of the Executive and
partly because of the non-availability of resources with the State Government. In
the case of PCRA, the Act leaves little scope for laxity in enforcement on these or
on any other grounds.
The Act requires the Central Government to co-ordinate the measures taken by
the State Governments in the implementation of the provisions of the Act and to
place on the table of each House of Parliament, a report on the measures taken by
itself and by the State Governments in this regard (Section 15-A (3) and (4)).
The duties cast on the State Government by the Act are more onerous and
dynamic from the point of view of facilitating effective implementation. A mandatory
duty is imposed on the State Government to ensure the availing of Civil rights by the
"Untouchables". The State's duty is not limited to making avaialble the rights, but to
ensure that they are actually availed of by the persons subjected to any disability
arising out of untouchability. This is a positive provision requiring the State to do a
number of things to facilitate enjoyment of rights. Among other things, the State's
duties include such things as:
(a)
Providing adequate Facilities Including Legal Aid: This could mean
easy availability of police protection, the provision for a good communica
tion system between the people concerned and the enforcement
machinery, legal literacy and social mobilization for legal action of the
target groups, pro-active legal aid which would not depend on victims for
evidence and prosecution, immediate rehabilitation of victims, orientation
of personnel associated with the enforcement of the Act etc.:
(b)
Appointment of special supervisory personnel for processing com
plaints and conducting prosecution;
(c)
Setting up of special courts for expeditious trial;
(d)
Associating voluntary bodies and social action groups through appropriate
committees to assist formulation of policies and programmes in the im
plementation of the Act;
(e)
Identifying areas prone to victimisation of S.Cs. and taking extra care to
insulate such areas from the risk of offences; and
(f)
Providing for periodic survey on implementation and adopting measures
to improve working of the Act.
The package of duties and responsibilities that the Act imposes on State
Government is a unique strategy to ensure that the target groups do, in fact avail of
their rights under the Act. It makes difficult for State Governments to put forth alibis
and excuses for non-enforcement and make them accountable for full enjoyment of
civil rights by the Scheduled Caste inhabitants in their territory.
The apparatus for enforcement envisaged under the Act appears to be a fairly
responsive and responsible one if the powers that be in the State Government want
to be serious about the legislative intention. A vigilant press and an enlightened
citizenry can make the Governments accountable in this regard if they still try to
evade responsibility.
In order to carry out the provisions of the Act effectively it would be necessary
to have rules in respect of investigation, prosecution and trial of offences as well as
in regard to relief and rehabitation to victims of crimes. The power to frame rules is
given by the PCRA to the Central Government which incidentally helps for uniformity
and standardization in approaches towards implementation. The State Govern
ment, however, may, subject to the rules framed by the Central Government, take
such administrative measures as may be necessary for ensuring the effective
implementation of the Act. Different State Governments depending upon the nature
and extent of victimisation in their territory and upon the pressure of public opinion
have adopted different measures in respect of deployment of police personnel and
procedure, constitution of special and mobile courts, modification of evidentiary and
trial procedures, provision for free legal aid, rehabilitation of victims, and co-opera
tion of public-spirited individuals and organizations.
In order to understand the functioing of the system of protection of S.Cs. and
S.Ts. in a given State at a given time, it is necessary to study the Rules framed under
the Act and the administrative measures mounted within the State. Special Police
Cells under senior officers, Special Courts and Mobile Squads, a pro-active legal aid
machinery, close association of voluntary organization with the implementation and
a vigilant intelligence and monitoring system are usually provided in some of the
States prone to untouchability-related offences.
OFFENCES UNDER S.C. AND S.T. (PREVENTION OF ATROCITIES)
ACT:
' Apparently finding the Protection of Civil Rights Act (PCRA) inadequate to
safeguard the dignity and human rights of S.Cs and S.Ts., Parliament passed a
special legislation in 1989 creating a large number of new offences of atrocities
against S.Cs and S.Ts and providing for its effective prevention and speedy punish
ment. For short, this law may be referred to here as the Prevention of Atrocities Act
(PAA). On the face of it, the new law appears to be a determined legislative response
to the challenge of increasing atrocities against Harijans in many parts of the country.
Apart from severely criminalizing a variety of uncivilised practices vis-a-vis S.Cs and
S.Ts, PAA attempts to plug the loopholes noticed in the implementation of protective
legislation of similar nature in the past. The Act is to come into force on a date to be
notified by the Central Government.
Altogether PAA creates over two dozen offences classified as "atrocities".
These include conduct which tend to destroy the self-esteem, undermine economic
rights, outrage the modesty of women, distort legal and administrative processess
and influence voting behaviour by force of people belonging to S.C and S.T. The
punishments provided are relatively severe indicating legislative attitude on the
gravity of the offences described in the Act. The law of procedure and evidence are
suitably modified to assist effective enforcement of the provisions for which account
ability is to Parliament through an annual report. The Prevention of Atrocities Act,
1989 is indeed a bold step in the direction of meaningful implementaion of the
Constitutional Directives and pro-active protection of human rights of S.Cs and S.Ts.
through co-ordinated State action supported by extreme criminal sanctions.
The list of atrocisites punishable under PAA includes the following classes of
offences committed by a non-Scheduled Caste/Scheduled Tribe person against an
S.C/S.T person:
8
(a) Acts derogatory to human dignity: These include forcing to drink or
eat obnoxious substance, dumping waste in the premises or neighbour
hood with intent to cause insult or annoyance, and forcibly removing
clothes or parading naked a member of S.C./S.T. etc.
(b) Wrongful deprivation of economic rights: These set of atrocities
include forced or bonded labour, wrongful occupation or cultivation of land
belonging to S.C/S.T, wrongful dispossession from land or interference
with the enjoyment of rights over any land, premises or water, and forcible
causing of an S.C/S.T. to leave his house or village;
(C) Forcing Voting behaviour: Use of force or threat of force in order to
abstain from voting or voting for particular candidate is made an offence
of atrocity against S.Cs/S.Ts.
(d)
Abuse of legal process: Insitution of false, malicious and vexatious legal
procedings against S.C/S.T. person as well as giving false or frivolous
information to public servants in order to cause injury or annoyances are
offences punishable as atrocities under the Act’;
(e) Dishonouring or outraging modesty of women: This type of
atrocity includes assaulting an S.C/S.T. woman with intent to dishonour or
outrage her modesty as well as use of one’s dominant position to sexually
exploit her;
(f)
Humiliation in public: It is an atrocity punishable under the Act to
intentionally insult or intimidate in public an S.C/S.T. person with a view to
humiliate that person:
(g) Acts endangering health: Fouling water ordinarily used by S.C/S.Ts
in order to render it less fit is punishable as atrocity;
(h) Denial of access to customary rights or to public places:
Preventing S.C/S.T. person from enjoying customary right of passage to
a public place or obstructing use of public places accessible to others are
atrocities punishable under the Act.
For all the above offences the punishment prescribed is a minimum of six
/months’ imprisonment and fine. In appropriate cases the imprisonment may extend
to five years. Whereas most of the offences under the Protection of Civil Rights Act
are punishable with imprisonment between one month to six months only, offences
listed under the Prevention of Atrocities Act are punishable with imprisonment
between six months to five years. In respect of fine the PCRA limits it to Rs. 500/=
only whereas under PAA, it is unlimited.
(I)
Giving or fabricating False evidence: Giving or fabricating false
evidence intending or knowing it to be likely to lead to conviction of an
S.C/S.T. is an offence of atrocity. If the possible conviction of S.C/S.T is
for a Capital offence (i.e. punishable with death) then, such persons
responsible for false evidence are liable to be punished with life imprison
ment and fine; And if an innocent S.C/S.T. is convicted and sentenced to
9
death by such fabrication, the Act prescribes death as punishment to the
person, who gave such evidence.
In cases other than capital offences and puniishable with more than seven years’
imprisonament, the fabricators of evidence involved are punishable with imprison
ment between six months and seven years and with fine;
(j)
Mischief by fire to property, house or temple of S.C/S.T:
Committing mischief by fire with intention or knowledge to cause damage
to property belonging to S.C/S.T. is punishable with imprisonment between
six months and seven years and with fine. If the object of mischief is a
dwelling house, temple or warehouse, the punishment shall be life im
prisonment and fine;
(k)
Committing serious crimes on account of the victim being an
S.C/S.T:
Any of the Indian Penal Code crimes punishable with 10 years' imprison
ment or more if committed against the person or property of an S.C/S.T.
on the ground that such person belongs to such community is an offence
of atrocity under the Act punishable with life imprisonment and fine;
(I)
Causing disappearance of evidence against offenders guilty of
atrocities:
If any person knowingly or under circumstances he has reason to believe
that an offence of atrocity has been committed, causes evidence relating
thereto disappear in order to screen the offender from punishment or
intentionally gives false information is punishable with the punishment
provided for that offence;
(m)
Public servants guilt of atrocities:
If a public servant commits any of the above offences he shall be punish
able with imprisonment ranging between one year and the maximum
provided for that offence.
A public servant wilfully neglecting his duties under the Act is also punish
able with imprisonment for a term between six months and one year.
(Section 3)
(n)
Increased punishments in certain cases:
Besides imposing enhanced punishment for subsequent convictions, the
Prevention of Atrocities Act provides for the forfeiture of property, movable
or immovable, used for the commission of the offence. Also, during the
pendency of the trial, the Court can order attachment of property which,
on conviction, can be forfeited to the extent it is required for the purpose
of realisation of any fine imposed. (Section 4,5 and 7)
(o)
Involvement of groups of persons:
There is also a provision for imposing collective fine if inhabitants of an
area are involved in any offence punishable under the Act. (Section 16)
10
SPECIAL COURT AND PREVENTIVE PROVISIONS:
(I) Special Court:
For the purpose of providing for speedy trial, the State Government is
required by the Act to specify for each District, a Court of Session to be a
Special Court to try the offences under this Act (Section 14).
(ii)
Special Public Prosecutor:
For each such special Court, the State Government shall specify a Public
Prosecutor or appoint an Advocate with not less than seven years’ practice
as a Special Public Prosecutor for conducting cases under the Act.
(iii)
Action for keeping Peace in atrocities-prone areas:
The Act provides for preventive strategies to avoid the commission of
”*)
atrocities against S.Cs and S.Ts. Police officers and Executive Magistrates
having reasons to believe that offences under the Act are likely to be
committed can declare such places as atrocities - prone and can take
necessary action for keeping the peace and good behaviour according to
the relevant provisions of the Code of Criminal Procedure. Furthermore,
the State Government is empowered to make suitable schemes to prevent
atrocities and to restore the feeling of security amongst the S.Cs and S.Ts.
(Section 17)
(iv)
Non-availability of anticipatory bail:
Persons liable to be arrested for offences under the Act are denied the right
to seek "anticipatory bail" available to other accused under Section 438 Cr.
P. C. (Section 18).
(v)
Non-availability of probation:
Nor are the provisions of Section 360 Cr. P.C. and the provisions of the
Probation of Offenders Act available to those convicted for offences under
the Prevention of Atrocities Act unless the person concerned happens to
be below eighteen years of age. (Section 19)
(vi)
!
Removal of person likely to commit offence:
Special Courts on a complaint or a police report of the likelihood of some
person of commission of an offence undqr the Act, can by order in writing
direct such person in "Scheduled areas" to remove himself beyond the
limits of such area for a period upto two years (Section 10)
Persons so externed can represent to the Special Court within thirty days
of the order and seek modification of the order. However, if the person so
externed fails to remove himself as directed or having so removed himself
enters within the period specified in the order, the Special Court may cause
him to be arrested and kept in police custody. The special Court can also
seek from the person concerned a bond with or without surety for due
observance of conditions imposed. (Section 11)
11
The NATIONAL LAW SCHOOL OF INDIA UNIVERSITY (NLSIU) is
one of the premier institutions for higher education in Law. Sponsored by
the Bar Council .of India to achieve excellence in professional legal
education, NLSIU is the only Law University in the country established
under the National Law School of India Act 1986. Besides offering regular
5 year integrated legal education for the B.A., LL.B.(Hons) degree, two year LL.M, degree, one year M.Phil degree and research-based LL.D
degree, the University offers continuing education for law persons and
para-legal training for social activists and legal aid workers. It is a totally
autonomous national institution managed by a General Council of which
the Chief Justice of India is the Visitor
e
.THE LEGAL SERVICES CLINIC (LSC) is community service
programme of the NLSIU intended to support the clinical legal education
demands of the students while serving the legal needs of disadvantaged
sections of the people. It receives funds from the State and Central Legal
Aid Boards and renders a variety of support services in legal aid delivery
systems of government and professional organizations. Legal literacy
programmes, social action mobilization camps, socio-legal surveys on
problems of the poor, Lok Adalat organization, social audit of welfare
legislation’, law reform support programmes, para-legal training, public
interest litigation etc., are some of the activities of LSC. In these and other
activities. LSC maintains constant contact with professional bodies on the
one hand and with socipl action groups on the other.
Payonidhi Printers (P) Ltc
Phone: 611008
e
Position: 1798 (2 views)