[WSMDiscuss] Institutionalized Impunity vs. Misuse of Law

Fri May 4 13:30:10 CEST 2018

Dear Friends 

Greetings! On thelink mentioned below and also pasted below you could read an opinion piecehighlighting the inbuilt institutionalized impunity in the Indian criminaljustice administration system. 

Do pass it on toothers in your circle/network. 

Apattern of impunity: on the SC/ST Act 

G. Sampath,Lead/Opinion, The Hindu, May 04, 2018 

http://www.thehindu.com/opinion/lead/a-pattern-of-impunity/article23763763.ece?homepage=true

Theproblem with the SC/ST Act is the failure of the criminal justice system to recognizeits own casteist biases 

For India’s Dalitsand Adivasis, May 1 this year was a ‘May Day’ in more ways than one. It was MayDay, the day to commemorate the labour movement (the vast majority of them dobelong to the working classes), and also ‘mayday’ in the maritime sense, anoccasion to broadcast their distress over a life-threatening emergency.

Dalit and Adivasirights organisations observed May 1 as ‘National Resistance Day’. The immediatetrigger was the Supreme Court order of March 20 on the Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter SC/ST Act).Protest meetings held across the country had three demands for the government: neutralisethe Supreme Court order through an ordinance that would reinstate both theSC/ST Act and the SC/ST Amendment Act, 2015, in their original form; includeboth these laws in the Ninth Schedule to protect them from judicial review; andrelease all the Dalits arrested on April 2 when a ‘Bharat Bandh’ was observedto protest this Supreme Court order.

The Mahajan case

A lot has alreadybeen written on why the Supreme Court order is prejudicial to the cause ofjustice for victims of caste atrocities. But the underlying case that triggeredthe controversial judgment hasn’t received enough attention. It might beinstructive to briefly consider the facts of this case, Subhash Kashinath Mahajan v. the State of Maharashtra.

The dispute arose in2007, when Bhaskar Gaikwad, a storekeeper in a government college in Karad,Maharashtra, wrote to the State government highlighting alleged illegalitiescommitted by Satish Bhise, the college principal. Mr. Gaikwad is from theScheduled Caste (SC) community, Mr. Bhise is a non-SC person.

In April 2008, Mr.Gaikwad stated in his annual confidential report (ACR) that he had brought tolight certain irregularities in the procurement of materials for the college.When Mr. Gaikwad’s reporting officer, Kishor Burade (also a non-SC person), sawit, he allegedly entered false information in the ACR about Mr. Gaikwad’sperformance as well as some casteist remarks about his character. Mr. Bhise,too, allegedly made mala fide comments against Mr. Gaikwad in the ACR.

When Mr. Gaikwadbecame aware of these remarks in his ACR, he filed a first information report(FIR) against Mr. Bhise and Mr. Burade under the sections of the SC/ST Act thatpenalise a non-SC person for giving a public servant false information thatcould harm a SC person. Since the accused were Class I officers, the policeapplied for sanction to prosecute them.

Subhash K. Mahajan,who was then the Director-in-charge, Technical Education, Maharashtra, wrote tothe investigating officer denying sanction for prosecution, even though he didnot have the authority to make that call.

Following Mr.Mahajan’s refusal to grant sanction for prosecution, the police in 2011 filed aC-Summary report on the case, which means that the case is “neither true norfalse”. Mr. Gaikwad claims that he was not informed of this fact by either thepolice or the courts for more than four years, even though they were requiredby law to do so.

When he finally foundout about the C-summary report in early 2016, he filed another FIR, this timeagainst Mr. Mahajan, charging him with knowingly shielding persons accused of acrime against an SC person. This too is an offence that attracts the provisionsof the SC/ST Act.

In August 2016, thedefendant (Subhash Mahajan) approached the Bombay High Court asking for the FIRto be quashed on the grounds that the charges against him were false andfrivolous. The High Court not only refused to quash the case but also ruledthat “there are sufficient safeguards in the Act itself which guaranteeprotection against frivolous and false prosecution”.

The defendant thenfiled an appeal against this decision in the Supreme Court.The apex court, instead of concerning itself solely withthe merits of Mr. Mahajan’s appeal, dramatically expanded the ambit of thecase, noting, “The question which has arisen in the course of consideration ofthis matter is whether any unilateral allegation of mala fide can be ground toprosecute officers who dealt with the matter in official capacity and if suchallegation is falsely made what is protection available against such abuse.”

In the name ofprotecting innocent non-SC persons from being victimised by false complaintsunder the SC/ST Act, it laid down three guidelines that nullify key provisionsof this law: it removed the bar on grant of anticipatory bail; even though theMahajan case only concerns public servants, it ruled that where the accused isa non-public servant, the police may make an arrest only after approval by asenior superintendent of police; and it held that before registering an FIR,the police may conduct a preliminary inquiry to ascertain the veracity of thecomplaint.

Setback for SC/STs

Taken together, the three changes neatlyreverse the original mandate of the SC/ST Act: instead of immediatelyregistering an FIR and investigating the accused, the police would nowimmediately doubt the Dalit and investigate her complaint for veracity, andwhat’s more, they are required to do so by law.

One might assume thatspecial guidelines to curb false allegations would be sparked by a case wherefalse allegations have been proven. But that is not quite the case here. Theapex court’s judgment does not engage exhaustively with the allegations made bythe original complainant, Mr. Gaikwad, against the defendants, Mr. Bhise, Mr.Burade and Mr. Mahajan.

In fact, Mr. Gaikwadhas presented three fresh applications to the Supreme Court: one to prosecuteMr. Mahajan “for filing a forged English translation of the original MarathiFIR”; one seeking recall of the March 20 order on several grounds, “includingfraud on the Hon’ble Supreme Court of India by not filing the full text of theFIR”; and one “seeking calling of original records from the Hon’ble Bombay HighCourt”. These applications were tagged and listed along with the Centralgovernment’s review petition.

By far the mostdisturbing aspect of the court’s order is the idea that poor conviction ratesand high acquittal rates suggest a high number of false cases. Can we applythis logic, say, to the acquittals of all the accused in the Kilvenmanimassacre (Tamil Nadu, 1968, 44 Dalits killed), Tsunduru massacre (AndhraPradesh, 1991, eight Dalits killed), Bathani Tola massacre (Bihar, 1996, 21Dalits killed), Laxmanpur-Bathe massacre (Bihar, 1997, 58 Dalits killed),Shankarbigha massacre (Bihar, 1999, 23 Dalits killed), to mention just a few ofthe most infamous instances of mass acquittals? Do these acquittals mean thatthe cases against the accused were false? Or do they suggest a pattern of bonafide impunity for crimes against the Scheduled Castes?

The SC/ST Act and theSC/ST Amendment Act hold enormous significance for Dalits not because they havebeen effective in protecting them from caste injustice; not at all. If they arecherished despite their poor conviction rates and shoddy implementation, it isbecause their very existence is a testament to Dalit agency in a heavilycasteist society, and apowerful affirmation of the community’s faith in the Indian Constitution.

The problem with thislaw is not its supposed misuse but the inability of India’s criminal justicesystem to recognise its own casteist biases. It is, after all, a matter ofcommon sense that in a society seeped in caste, no institution can claimimmunity from casteist prejudices or mindset. Sadly, the judiciary has beenreluctant to acknowledge the social matrix of jurisprudence in India, which iscaste.

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With Regards and InSolidarity 

Umakant, Ph. D 

New Delhi 

My final words of advice to you are educate, agitate and organize; have faith in yourself. With justice on our side I do not see how we can lose our battle. The battle to me is a matter of joy. The battle is in the fullest sense spiritual. There is nothing material or social in it. For ours is a battle not for wealth or for power. It is battle for freedom. It is the battle of reclamation of human personality. 
B.R.Ambedkar
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