Item 3: Administration of justice, Rule of law and Democracy (part 1)

Discrimination in the Criminal Justice system; Dalits in India

Mr.Chairman,

In India, as proclaimed in its Constitution, there is an independent judiciary which has been delivering valuable judgements in its history. But, when considering its accessibility to 160 million dalits, who are spread all over India, the situation is debatable.

After 40 years of Independence, the Parliament passed the Act known as the Scheduled Caste and Scheduled Tribe(Prevention of Atrocities) Act, 1989 and Rules, 1995.The preamble of the Act states An Act to prevent the commission of offences of atrocities against the members of Scheduled Castes and Scheduled Tribes, to provide for Special Court for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto

Whenever a complaint is referred to the police by the dalits, where the offence is committed by a non-dalit, the First Information Report has to be filed under the above said Prevention of Atrocities Act. The victims are to be provided with protection and monetary relief. The witnesses have to be given travel and food allowance during investigation and trial. But in practice, refusal of complaint received is a normal practice and even if it is received, the charges are framed under diluted penal provisions.

The 'Protection of Civil Rights ' wing of the police, that is supposed to prosecute the offenders is highly manned by people who are insensitive to the dalit cause. The lethargic attitude of the police compelled the victims to enter into compromise with the perpetrators of the offence. The inability of the police and courts to deal with these crimes has had a backlash effect on young dalits.

The fact that the dalits are attempting to assert their rights by invoking laws, that itself becomes the reason for further attack to silent their voice.

If the low conviction rate under the Act is any indication, the judiciary has responded poorly to the Act. Judicial delay and dilution of the scope, applicability and meaning of the SC/ST Act has resulted in denial of justice to the dalits. Other than the above technicalities, there are other reasons on which charges under the Act are quashed. That is the offence was not committed on account of the victim being SC or ST, e.g. lust for sex, illicit intimacy, political rivalry, enmity or quarrel.

It is reported that reserved quotas in the universities are not filled, especially in the technical and professional courses. The affirmative policy of reservation in the employment given to the dalits in the Constitution is not made applicable to the Judiciary. As quoted in the working paper of R.W.K.Goonasekare in document E/CN4/Sub2/2001/16, "In the absence of quotas there is hardly any representation in the defence forces, scientific establishments and judiciary. Hence in the High Courts and in the Supreme Court, there is no proportionate representation of the judges from dalit communities.

On the other hand, as provided in the document E/CN4/Sub2/2002/5, the historical context becomes relevant to the disproportionately high rates of crime and victimization compared with the size of these groups in the Indian society.

When an offence was committed by a dalit, in many occasions, the entire people of dalit community in the village including children were arrested. They are not able to produce sufficient suretee as required by the courts because of their economic conditions. While granting bail, they were required to stay in a place far away from their native.

The laws are there, but there is a clear lack of will on the part of law enforcement officers to take action owing to caste prejudice on their part or deference shown to higher-caste perpetrators. The Supreme Court of India, in 1993, in State of Kerala vs Appu Balu said: More than 75 per cent of the cases under the (SC/ST)Act are ending in acquittal at all levels.

On the one hand, the police and judiciary failed to be sensitive to the cause of the dalits and to implement the duties mandated to them, on the other hand, the high caste people demanded the withdrawal of the Act on the ground that the Act was misused by the dalits against the high caste people.

The study undertaken by the former member of the Sub-Commission on the Protection and promotion of Human Rights Mr. Goonasekare dealt broadly the prevalence of discrimination based on work and descent in different parts of South Asian countries, it failed to address the impunity exist within the judiciary and in the system of administration of justice.

Therefore, we request the Sub-Commission on the promotion and protection of Human Rights to make a study on the inherent bias of the judiciary towards the dalits in justice delivery and the lack of will among the police to pursue the case in true spirit.

As observed by Mr.Yookota, form of discrimination is different from one group to another group and this group which based on 'work and descent' should beconsidered as marginalized group and the Sub-Commission on the Promotion and Protection of Human Rights has to encourage the Government of India to recruit the members of the dalit community members into the police and other law enforcement agencies including judiciary and it has to encourage the Government to invoke the penal provision against the erring Investigation officers for their negligence in pursuing the prosecution under the Prevention of Atrocities Act.