Manubadi Adarsh (Ideals) and our Justice System

April 19, 2018

The process of saffornising democratic institutions started since the Bajpayee govt came to power. Under the rule of Modi, It has been turned into the prime focus of all govt. sponsored activities that underpin a single point agenda – Hindutva. With the present regime being mired into ever deepening crisis and the signs of it’s possible decline becoming evident, the frenzy of saffornisation has reached no-holds-barred proportion. Self-styled Godman dons the mantle of the jury and delivers his judgement on Ram mandir construction issue. Conversely a group of learned judges have given some judgements that sounded more like sermons. Lack of reason and factual evidence, prejudices, and flagrant bias prevailed over the reasoning, neutrality and understanding of the real perspective.The whole country has erupted in anger against such a judgement given( 20th March 2018) by a two-judge bench of Supreme court. The bharat bandh of 2nd March was called by dalit organizations all over the country. The impact of the bandh was so extensive and demonstrations were so militant that it jolted and unnerved the ruling BJP who quickly swang into damage control mode by promising review petition. Quite expectedly the S.C. has rejected the petition.Naturally the question that arises is : What are there in the 89 pages judgement that provoked scathing criticsm and condemnation by not only dalits, democratic individuals and organizations but by most of the parties across the political spectrum barring BJP?

In the wake of Hindutva attack on Bhima-Koregaon rally of the dalits,the streets of Mumbai and Pune have witnessed the defiant march of solidarity between the Muslims and dalits. On 2nd March, the unprecedented show of unity and strength that was displayed will be remembered as a mile-stone in dalit movements of contemporary history. The two judges have labelled this mass upsurge as one which was “misled” by “ vested interests”. Though the comment is far from the truth , it bears significance. The main volley of criticisms that were directed against these judges are that they have diluted the SC and ST ( Prevention of Atrocities) Act 1989 to such an extent that it has been rendered toothless and the chance of a dalit getting a F.I.R. lodged and seeking justice has become a near impossibility. Now let us examine how this three decade-old act was undermined by so called legal luminaries who are close to the sangh parivar.

In the controversial judgement on 20th March, the two-judge bench comprising Justice Adarsh Kumar Goyel and Uday Lalit has observed that the SC & ST ( PoA) Act 1989 has become “an instrument to blackmail” or “to wreak vengeance “or “to deter public servant from performing their bona-fide duties”. They have even remarked that the marginalized sections of the society use this act to satisfy vested interests and the act “perpetuates casteism”! The most outrageous comment is that the checks on the Act as has been improvised by them will “promote fraternity” in the caste divided society.

The skewed observations and apalling remarks made by these two learned judges bear testimony to their astounding knowledge and wisdom that are abysmally divorced from reality. If they wanted to take cognigance of the harsh reality of casteism, they would have been required to shun their Nagpur vision and look at the other bharat far beyond the ambit of court no 11. The convoluted logic masquerading as legal statement can hide the real motive but utterly fails to hide the realities that are as follows:

** Every 15 minutes a crime is committed against a dalit in India.
** From 2007 to 2017 , the ten years period saw 66% rise in crimes against Dalits. Between 2015 to 2016 reported crimes against dalits increased by 5.5% and those against STs by 4.5%. ( Indian Express,28/3/18)
** According to NCRB data the incidence of rape has doubled in last 10 years. Sexual violence constitute the bulk of atrocities commited against the dalits.( The Hindu,28/3/18)
** Over last ten years there have been 63 cases of lynching in the name of cow protection. 61 cases or 96% of all happened under the rule of Modi govt. (2014-2017) ( The Telegraph, 03/7/17)
** Between 2010 to 2016, the rate of pendency has risen from 78% to 91% in case of dalits, from 83% to 90% in case of adivasis.
** Conviction rate dropped from 38% in 2010 to 16% in 2016 for crimes against SCs and from 26% in 2010 to 18% in 2016 for crimes against STs.
** Rate of completion of trial ending in conviction is just 1.4% for all crimes against SCs and 0.8% for crimes against STs. ( Indian Express 28/3/18)

To speed up the trial procedure it was mandatory under this act to set up
one special court in each district. There are only 198 such trial courts all over India. Therefore 2/3rd of all districts including those notorious for castiest violence remain without any such court. It is in this backdrop that the two judges proclaimed in their judgement that from now on the public servants can only be arrested under the SC & ST atrocities prevention act only with the written permission of their appointing authority and in cases of private employees the senior superintendant of police will have similar authority. In fact, it was suggested that a preliminary enquiry report is mandatory before a F.I.R. is registered.

Fact of the matter is that untill now, majority of cases filed under the atrocities on dalit prevention act were linked with – land disputes,resistance against untouchability, fighting against the sexual violence on women or perpetuation of bonded labour.The fear of upper-caste reprisal , economic and social boycott deter the victims to lodge F I R or to persue the legal remedies. In fact there are ample instances of lone survivor of atrocity or the witnesses turning hostile and refusing to divulge the truth in the face of grave threat. In most of these cases the apparent lack of evidence led to the acquittal of the accused persons. The learned judges juxtaposed such acquittals to justify the story of false cases. The following few incidents point to the fact how the inherent anti-dalit bias of the police administration and the judiciary has denied justice to the marginalized people in their unequal fight against the powerful upper-castes .

Ranveer Sena, a private army of upper caste landlords perpetrated the massacres of Bathani Tola(1996) and Lakhimpur Bathe (1997).On 11 July 1996, they attacked dalit and Muslim landless peasant famiies of this small village of Bhojpur district of Bihar and killed 11women, 5 young girls, 8 young boys and 1 man. All 23 people convicted by lower court were acquitted by Bihar HC and it was told by the HC that the survivor witnesses were lying and there accounts were “untrustworthy”.
In Kizovemani of Tamil Nadu (1958),44 SC people confined in a room were burnt to death for demanding a small hike of their wages. All the accused were acquitted by high court.
In Karamchedu of Andhra Pradesh (1984) 5 dalits were killed.The trial court convicted most of the accused and High Court acquitted them all. The Supreme Cour upheld the judgement of trial court.
( The Wire, 23/3/18)
Many instances of such atrocities and consequent denial of justice that made headlines of newspapers constitute just the tip of ice-barg. If the cases of SC & ST ( PoA) is put in right perspective there are ample evidences that belie the fanciful observation that the marginalized people sought to blackmail the govt. servants to wrek vengeance. On the contrary, the “rampant” discrimination and bias against the dalits whch are inherent in the police, administrative and justice system deterred the dalits from continuing their fight for justice. The heinous attempt to brand those who suffered the tyranny of Brahminical caste system for centuries as the perpetrators of the crime is not only against the spirit of constitution but against the principles of democracy and humanity.

The division of labour prevalent in the Brahminical society formed the material basis of casteism. No radical solution to this menace is possible without addressing the question of the demand of lands for land-less dalits, the grabbing of lands of marginalized dalit peasants, the issue of abysmally low agricultural wages, bonded labour, and sexual violences against dalit women. What can be a more blatant lie than saying that the Act intended to protect the dalits against atrocities “perpetuate” the caste system and undermining the same will promote fraternity.

The judiciary is not supposed to make or abrogate a law. In a democracy their function is limited to the application and interpretration of law ( when necessary). The justice Goyel and justice Lalit assiduously attempted to limit the application of the said act and turn it against those who were supposed to be protected by this act. In a similar judgement on 2 July,2017 these two judges have diluted the anti-dowry Act 498A. They suggested that a family welfare committee should be set up in every district and no arrest can be made or a F.I.R against the accused cannot be lodged without the premilinary investigation and recommendation of this committee.
The upper-castes of an essentially anti-women and anti-dalit Brahminical society regard the Manusmriti their fundamental law-book. In 1949, RSS, the militant Hindu organization visciously attacked B R Ambedar. Their allegation was that he incorporated alien values in the constitution and discarded the Bharatiya principles. They even demanded that manusmriti be formed the basis Indian constitution.Manusmriti says what powers and privileges the upper-castes are entitled to enjoy, what the lower castes and untouchables will eat, what they will wear, where they will be allowed to reside in the fringes of village and how the women will remain in the custody of different men at different ages during their life-time. In the villages of Haryana,western U.P., eastern Rajasthan the parallel justice system called khap-panchyat is guided by the principles of mansmriti. The reason, facts and understanding of civilized world have no place in this mediavel practice and the barbaric punishments that they mete out get impunity from the administration and the tacit support of political establishments. But the question remains – how did such anti-dalit and anti- women bias make it’s way right up to the top echelons of our justice system? Justice Adarsh Kumar Goyel who was appointed as a supreme court judge after Mr Modi came to power had already served as general secretary of Akhil Bharatiya Adhivakta Parishad , a lawyers wing of RSS . Among it’s founding members were legal heavy-weights including H.R.Khanna, U.R. Lalit , Ram JethMalani .

Dalit organizations have rightly demanded that the the judgement( 20th March. 2018) of these two-judge bench be expunged and a new legislation be made to reinforce the existing act. The struggle of the dalits to achieve this goal will be bitter and a long-drawn one.Their struggling spirit was ridiculed by the two judges as one being misled by vested interests. The fear that manubadi adarsh or ideals are casting it’s long and dreadful shadow on our justice system looms large on this country.