TRANSGRESSION OF THE INTERNATIONAL NORM BY PAKISTAN: EVINCES EVEN-HANDEDNESS IN ABROGATING ART. 370 OF THE INDIAN CONSTITUTION
October 22, 2020

Tribal atrocities

The human race has evolved from Neanderthals to the modern-day men and women, but we still cannot fathom the existence of tribal individuals who lead a life of despair and discrimination. The tribal population of India is scattered in various parts of the country, mainly situated in the valleys and hills of these places. These societies are segregated from the rest of the civilized societies and they have been subjected to tremendous harassment over the years. Not only do scheduled castes and scheduled tribes – who comprise 25%, or 305 million, of India’s 1.2 billion people – endure historic and systemic discrimination, they are targets of growing violence, as they attempt to improve their lives in the world’s fastest-growing economy[1]. This paper aims to scrutinize the justice system when it comes to crimes against scheduled Caste and Scheduled Tribes and seeks to provide legal reforms for the same. On the basis of the above-mentioned motive, this paper has been divided into 5 major parts –  i) problems faced by the community, ii) present situation, iii) what needs to be done iv) setting up of special courts and lastly iv) concluding remarks
 I          
 Although the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 includes both schedule caste and schedule tribes, I would like to focus this paper on only the tribal atrocities that happen in our country. Tribal atrocities are not something new that is happening in this country. The reason why tribal atrocities are not seen as a threat to society is because of the fact that they are not reported. In remote villages in districts of Bihar, there have been many rapes and murders of people belonging to a lower caste. These crimes are not reported due to lack of influence or education of the lower castes. Be it rape, taking their lands by force or police brutality, they have been a victim to all of these crimes. In absolute terms, in 2014, most crimes against scheduled castes were registered in Uttar Pradesh (8,075) followed by Rajasthan (8,028) and Bihar (7,893), and most crimes against scheduled tribes were registered in Rajasthan (3,952), Madhya Pradesh (2,279) and Odisha (1,259).[2] According to data from the National Crime Records Bureau, 704 murders and 2,233 rapes against scheduled castes and 157 murder cases and 925 rapes against scheduled tribes were reported in 2014.[3] These crime statistics are redolent of the following facts- first, that there has been a huge rise in the number of tribal crimes in the past few years and second, that other places that have the bigger tribal population, have not reported crimes relating to tribal atrocities
In Chotanagpur, the abode of many an important tribe in the country, tribal tensions have erupted in the form of riots and rebellion, such as Kol Insurrection, Santal rebellion, and Sardari larai to name a few.[4] These rebellions are proof that the tribal population, although
segregated, are in the process of the uprising and the backlash that can erupt from these rebellions can be harmful to the society, as a whole.
II
It is not like there are no laws regarding the punishment of people who practice these hate crimes. Specific laws include the Protection of Civil Rights Act, 1955, and the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989. Apart from these acts, there is also the Indian Penal Code, which is used mostly by the courts as a guide to the various crimes and their respective punishments. But compared to a 45% conviction rate for all cases under the Indian Penal Code, no more than 28% of crimes against scheduled castes and scheduled tribes end in conviction, according to the data from the National Crime Records Bureau[5][6]. Then why is the judiciary unable to provide justice to these strata of the society?  Why is there such a low conviction rate for such offences? The answer lies in the fact that they believe in i.e. the misuse of the Scheduled Caste Tribes (prevention of atrocities) Act by these lower-caste individuals. The Supreme Court in a recent judgement in the case of Dr Subhash Kashinath Mahajan vs The State of Maharashtra[7], said that there needs to be a dilution of the Scheduled Caste and Tribes (Prevention of Atrocities) Act as many innocent citizens and public servants were being framed by the use of this act. The court removed the provision of the automatic arrest of anyone accused under this act and made it compulsory for the police to do enquiries for seven days before filing the first information report. The court has also mandated that the arrest of public servants accused under the Scheduled Caste and Tribes (Prevention of Atrocities) Act to be arrested only after the written approval of their said public authority.
It is funny to notice how the government and the judiciary took years to identify the discrimination that these individuals are subjected to, but the moment a case was filed against an upper-caste person, they denote it as ‘blackmail’. Thousands of unreported crimes that have happened over the years aren’t taken into consideration when something like this comes into light. The rapes of tribal women in villages of Bihar and Odisha are never reported by police and in case one, among those thousands, musters the courage to file an FIR, the police rape her again.
Another one of the reasons for the low rate of conviction is the power-play dynamics involved in these cases. Starting from the police officer that files the FIR and people involved in the escalation matrix after that, the officials are all upper caste individuals that do not want to help these individuals. The recent judgement, In Re Provision Of Section 14a Of SC/ST (Prevention Of Atrocities) Amendment Act,2015[8] passed by the Allahabad High Court in Lucknow bench with regard to the case of Satyendra and another v. State of Uttar Pradesh[9] has partially struck down Section 14A of the Scheduled Caste and Tribes (Prevention of atrocities) Act, which was introduced by a 2015 Amendment. This amendment was passed as section 14 of Scheduled Caste and Tribes (Prevention of atrocities) Act had an overriding effect on the provisions of Section 41 and 41A of the Code of Criminal Procedure. The court decided to strike out section 14A of the Scheduled Caste and Tribes (Prevention of Atrocities) Act, wherein the accused was provided with a 180-day limitation period to file an appeal against any judgement, sentence, bail or any other orders (except for interlocutory orders) passed by any special courts for matters concerning SC/ST atrocities.
In the Rajesh Mishra v. State of Uttar Pradesh[10] case, the court has also said that there will be no ‘routine arrest’ for accused if the punishment under other section is less than 7 years. The investigating officer needs to make sure that the arrest is essential, otherwise, the judicial magistrate will not put the accused in judicial custody. According to the court, this gives the police the time to look into the matter before initiating routine arrest and will prevent any misuse of the Scheduled Caste and Tribes (Prevention of Atrocities) Act.
One of the government’s arguments is that due to the existence of these tribal societies in-country, the Naxalites and Maoists organisations have come into the picture. These Naxalites movements were started due to unjust land distribution and these Naxals started redistributing land to the landless, but not among tribal people, in particular, but the less fortunate. But is it okay to marginalise the entire tribal population for the mistakes of a few? The tribal population, as a whole, did not decide to construct an anti-national organisation to rebel. Some of the individuals of the tribal community, in rebellion, have taken up these activities. So, it is unjust for the government to think that the entire community has given rise to a violent organisation.
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,1989 is considered one of the most prominent legal legislation to prevent offences against people of scheduled castes and scheduled tribes. In spite of the many deterrent provisions of the act, offences and atrocities against the community have been on the rise with higher acquittal rates and lower conviction rates. The failure of the implementation of the act is due to poor coordination between the enforcement authorities at the State and district level. Secondly, procedural hurdles such as non-registration of cases due to the fact that in most cases, the police officer is usually an upper caste individual who will not file a report. One such instance was seen in the case of Eramangalathu Chitralekha, the first Dalit woman to own a rickshaw of her own.[11] The upper caste members of the community in Kerala could not familiarise themselves with the fact that a lower caste woman like Chitralekha could earn on her own and as a threat, burnt her rickshaw time and again but her perpetrators scouted free due to the fact that the police would not file a report on the upper caste member of the society. Thirdly, the police have procedural delays in processes of investigation and filing of charge sheets. Like for instance, the police would deliberately file the cases under IPC and not Scheduled Caste and Tribes (Prevention of Atrocities) Act so as to provide a quick bail to the perpetrators. The cases filed under Indian Penal Code would not work for these crimes as the Scheduled Caste Tribes (Prevention of Atrocities) Act as the crimes and punishment for the same are not mentioned in the said code. These aforementioned facts are the reason for the delay in the court proceedings and also the low rate in conviction rates. 
 III
The above two parts have enlisted the problems that the tribal community has faced in the past and the problems that have prevailed in the present. In this section, I have given a ternary reform to the legal system to improve the conditions of the tribal community in the country. In the past, the implementation of the act has been pretty weak and has resulted in a lot of injustice. Hence, I propose a solution.
The first point of contact between the legal system and the victim is the Police. The police need to be more sensitized towards the victim. Due to the recent judgement passed by the Supreme Court in the case of Dr. Subhash Kashinath Mahajan vs The State of Maharashtra[12], now the police need to wait and investigate for seven days before filing the first information report. I would suggest that the police, although not file an FIR, should take into account the gravity of each case regarding tribal atrocities and investigate with dedication and a will to provide justice. As seen in earlier cases of SC/ST atrocities, a lot of police officers do not take the evidence as the accused involved is usually an upper caste member of the society.
Secondly, the people in the tribal community need to be educated about their rights and duties as individuals in society. The tribal society secludes themselves from the rest of the civilized society, but it is necessary for the tribal community to be enlightened that they, as individuals have rights as citizens of this country and that they need to exercise those rights as and when necessary. The Scheduled Caste and Tribes (Prevention of atrocities) Act should be explained in detailed to them and they should be taught that the wrong actions of others towards them will have repercussions in the form of punishment.
Thirdly, there should be expedited trials that can help the people of the tribal community get justice easily. Setting up of special courts just for cases dealing with SC and STs. This will ensure that the scheduled caste and scheduled tribe community will be able to have a much speedier court proceeding and will thus file for more cases rather than just sitting idle and letting the offenders run free. The next section is a detailed version of this point.
  IV
 Setting up of special courts will only fasten the process of justice and will help the judiciary and the victims. Allahabad High Court, in a recent judgement in the case of In Re Provision Of Section 14a Of SC/ST (Prevention Of Atrocities) Amendment Act,2015[13] has asked the Uttar Pradesh government to set up speed trial courts for Scheduled Caste and Tribes (Prevention of Atrocities) Act cases. It has directed the state government to start a consultative process under the provision and set up exclusive courts. The three-judge bench was of the opinion that the speed trial courts will help in the smooth functioning of the cases relating to scheduled caste and scheduled tribe atrocities cases. But the order of the court is only for the state of Uttar Pradesh. It should be implemented in all states, more importantly in states, where there is a high SC/ST population. In my opinion, the courts should appoint a team of specialist lawyers that could cater to the needs of the victims, whatever their case may be. And the judge should be given special training regarding these cases and should be sensitized with the problems faced by them. The geographical location of the court should be accessible to the tribal community as they live in far-off valleys and hills and might face problems to reach the court and most importantly each case should be given a limit of 6-8 weeks so that there is no delay in providing justice.
V
While writing this paper, some of the issues that come to mind are the fact that the tribal community, as a whole, is hesitant to report cases to any authority due to their caste. This stigma around the fear of caste needs to be eradicated in order for them to report the wrongdoings of people. Secondly, how the authorities have been negligent regarding cases of tribal atrocities. There needs to be some legal reform in this situation. Thirdly, the case of misuse of the act; the government and judiciary have already taken steps regarding this by passing an amendment which stops the immediate arrest of the accused. Fourthly, the delay in decisions which will be tackled by setting up of speed trial courts just for cases of SC and ST atrocities and offences. Lastly, the number of convictions for cases regarding SC and ST offences, which can only be tackled if everyone in the justice system will do their jobs in the proper manner and will follow all procedures required and be devoid of any caste centric ideology. These initiatives will, no doubt require a lot of funding from the state and the central government and given the state of tribals in the country, it seems like a bit far-fetched. But it is important that the tribal community of the country feels equal as any other community in the country and for that to happen, the aforesaid initiative needs to be undertaken and most importantly, implemented.

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REFERENCES

[1] https://www.thequint.com/news/india/why-crime-is-rising-against-lower-caste-and-tribes-discrimination
[2] https://www.thequint.com/news/india/why-crime-is-rising-against-lower-caste-and-tribes-discrimination
[3] https://www.thequint.com/news/india/why-crime-is-rising-against-lower-caste-and-tribes-discrimination
[4] Singh, Nandita. “Communal Land, Confilict and Tension in Tribal India.” Indian Anthropologist 29, no. 2 (1999): 87-108. http://www.jstor.org/stable/41919864.
[5] https://www.thequint.com/news/india/why-crime-is-rising-against-lower-caste-and-tribes-discrimination
[6] http://ncrb.gov.in/
[7] Dr. Subhash Kashinath Mahajan vs The State Of Maharashtra on 20 March, 2018, Indiankanoon.org (2018), https://indiankanoon.org/doc/108728085/ (last visited Oct 21, 2018).
[8] Breaking: Allahabad HC Full Bench Upholds Constitutional Validity Of Appeal Provision Under SC/ST Amendment Act; Strikes Down 180 Day Bar [Read Judgment] | Live Law, Live Law (2018), https://www.livelaw.in/breaking-allahabad-hc-full-bench-upholds-constitutional-validity-of-appeal-provision-under-sc-st-amendment-act-strikes-down-180-day-bar/ (last visited Oct 21, 2018).
[9] Satyendra and another v. State of Uttar Pradesh, 2018
[10] Rajesh Mishra v. State of U.P 2018, http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do
[11] https://www.thequint.com/news/india/why-crime-is-rising-against-lower-caste-and-tribes-discrimination
[12] Dr. Subhash Kashinath Mahajan vs The State Of Maharashtra on 20 March 2018, Indiankanoon.org (2018), https://indiankanoon.org/doc/108728085/ (last visited Oct 21, 2018).
[13] Breaking: Allahabad HC Full Bench Upholds Constitutional Validity Of Appeal Provision Under SC/ST Amendment Act; Strikes Down 180 Day Bar [Read Judgment] | Live Law, Live Law (2018), https://www.livelaw.in/breaking-allahabad-hc-full-bench-upholds-constitutional-validity-of-appeal-provision-under-sc-st-amendment-act-strikes-down-180-day-bar/ (last visited Oct 21, 2018).

ABOUT THE AUTHOR

 

Anshuman Das is a 4th-year law student at Jindal Global Law School.

In Content Picture Credit: IAS EXPRESS

 

 

Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.

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