The complaint of Justice C.S. Karnan, then of the Madras high court, to the National Commission of Schedule Castes in 2011 is a useful illustration when talking about the unconscious caste biases in workshops with judges, as it appeared in the realm of the credible. Karnan complained that “The judge, sitting crosslegged next to me, touched me with his shoes deliberately and then said sorry. Two other judges were watching it smiling”. Karnan claimed that he was discriminated against on the basis of his caste at several get-togethers, such as a full court meeting, high tea and dinner.
However, the present refrain of Karnan, now a judge at the Calcutta high court, that the consequences which have followed his erratic and unbalanced behaviour are in fact illustrations of caste discrimination can only serve to undermine and make a mockery of the serious issue of caste in the judiciary.
A pointer to the relation between caste and the judiciary is a 2006 interview of noted constitutional expert and jurist Fali Nariman during the release of his book India’s Legal System where he states, “Former law minister P. Shiv Shankar, a Dalit, told me that as policy, in some states, if two justices have to be sworn in on the same day, the guy from the preferred community is sworn in first, so that the guy from the non-preferred community doesn’t supersede him in becoming chief justice”.
The law dealing with contempt of court forbids the imputing of motives or biases to a judge. However, it may be instructive to look at some judgments of courts dealing with offences under the Protection of Civil Rights Act, 1955 (PCRA) and the SC/ST (Prevention of Atrocities) Act, 1989.
V.P. Shetty case
In May 2005, the chairman of the Industrial Development Bank of India (IDBI), V.P. Shetty, was arrested on a complaint made by IDBI general manager Bhaskar Ramteke under the Atrocities Act. Shetty is alleged to have hurled a volley of “casteist” expletives at Ramteke. The Bombay high court held that the offence of insulting or humiliating a member of a scheduled caste in “any place within public view” was not established, as the incident took place in a private room, and quashed the FIR. Contrary to the image of Ramteke and Shetty having a get-together in the latter’s drawing room, conjured up by the phrase “private room”, the incident took place in the chairman’s office at the IDBI premises in the World Trade Centre. Ramteke had gone to meet Shetty in connection with official work pertaining to readjustment of the SC/ST backlog (vacancies unfulfilled from the past years) ahead of the merger of the IDBI commercial banking arm and the IDBI.
Krishnan Naynar case
In 1996, a case was filed against E. Krishnan Nayanar, former chief minister of Kerala, under the PCRA as well as the Atrocities Act for making “casteist” remarks against one Kuttappan while contesting a by-election to the state assembly from the Thalassery constituency. The complaint was that Nayanar, at a convention of the Left Democratic Front at the Town Bank auditorium, said, “The other thing, that harijan, one Kuttappan, he was dancing on the table”. There were witnesses who had also deposed that more or less the statement had been made, with a little difference in wording. Even though the statute provides that an act against a person belonging to the scheduled caste category shall be presumed to be on the ground of untouchability, the Kerala high court held that no offence under PCRA could be made out as it could not be said that “the complainant was insulted or attempted to be insulted on the ground of untouchability”. As for the Atrocities Act, the court ruled that although the incident was admittedly in public view, the offence of insult or humiliation was not complete as the complainant Kuttappan was not present at the public meeting. The court went on to observe that it was only offences like dumping excreta, waste matter and carcasses within the premises of a member of the SC community, which need not necessarily be done in the presence of the person insulted.
Phulsing, a Lodhi thakur and ex-Malgujar, had been taking “begar” (forced labour without payment) from Balla, who was a chamar. Phulsingh had got Balla’s house demolished and abducted Balla’s wife for five days. In addition, Phulsingh had threatened to overrun Balla with his tractor and kill him. Balla reported the matter to the police and while he was returning, Phulsing shouted at Balla, “Chamra mere virudh report kyon ki, main tumse manhani ke 5,000 rupaye loonga (You chamar, why did report me, I will take Rs 5,000 from you for defamation)”. In a second case, Phulsing had a land dispute with Parsadi, also a chamar. Phulsing threatened and abused Parsadi by saying “Chamra ***** jagah chod dena nahi to goli maar doonga (You chamar, ****** leave the place otherwise I will shoot you dead)”. Phulsing also stopped Parsadi’s wife, who was passing through a road in front of his house, and said to her “Yahan se chamriya nikli to lat marenge, tere bap ka rasta nahi nahin (You chamariya, if you pass this way I will kick you, it is not your father’s road)”.
Two separate cases were registered against Phulsing – one with regard to the incident involving Balla and the other with respect to Parsadi and his wife – for insults on the ground of untouchability under Section 7(d) of the PCRA. The Madhya Pradesh high court acquitted Phulsing in both criminal cases with a rather puzzling observation, “Now calling a chamar a chamar may be insulting him, but it would not be an insult on the ground of untouchability”.
In Phulsing vs State of Madhya Pradesh, the court decreed that even a “casteist” abuse hurled at a member of a scheduled caste might not amount to insult on grounds of “untouchability” if there are other issues involved between the parties. It is pertinent to note that the quarrels that form the backdrop of “casteist” abuses, insults and humiliations are in fact themselves rooted in the caste location of the individuals concerned. PCRA has been enacted to concretise and make real the abolition of untouchability under the constitution and if two interpretations in law are possible, then the one that furthers the intention and object of the legislation is to be favoured over the other. However, the judgment held that regardless of the presumption under Section 12 of the PCRA – that the court must presume that an act was on the ground of untouchability – in the present case the insults were “insults simpliciter” and not on the ground of untouchability.
Enforcing any social distinctions on the grounds of untouchability with regard to the use of utensils kept in restaurants, hotels, dharamshalas and sarais is an offence under the PCRA. The Karnataka high court, in State of Karnataka versus Irappa, a case where separate cups and saucers were kept for Dalits, acquitted the hotel proprietor on the grounds of a 12-hour delay in filing the complaint, the prosecution witnesses being related to each other and because the complaint did not specifically mention that the accused had kept the utensils separately.
Preventing any person from exercising a right on the grounds of untouchability is an offence under the PCRA. Similarly, encouraging any person, class of persons or the public by words, signs or otherwise to practice untouchability and insulting or attempting to insult a member of a scheduled caste are offences under the PCRA.
One Duni Chand had invited all the residents of the village, including Dalits, for food at his house in connection with the wedding of his son. The seven accused persons arrived there when Nanku, son of Dharu, and Chana, son of Sukhiya, who were both Dalits, were eating. The accused allegedly stated that they would not eat at the house. They also apparently turned out Nanku and Chana from there. The Supreme Court held that the evidence of the complainant Duni Chand and the eyewitnesses was of a general nature and none of the witnesses had stated with reference to any of the accused the specific words used by them at the relevant time. The court said that no offence under Section 7 of the PCRA was made out and set aside the conviction of the accused persons.
Bhanwari Devi case
Under the constitutional scheme, if two interpretations of a provision in law are possible, then the courts are under an obligation to favour the one that furthers the intention and object of the legislation over the other. The PCRA has been enacted to concretise and make real the abolition of untouchability under the constitution. Similarly, the provisions of the Atrocities Act are to be interpreted to further the object of prevention of atrocities against SCs and STs.
The judges trying cases under these anti-discriminatory laws are consciously trying their best to be free from biases. However, it is no coincidence that the interpretations favoured in each of the judgments work out in favour of the acquittal of the accused persons. Such is the insidious nature of caste in India that it is likely to creep in unconsciously in actions, behaviour and interpretations of legislative provisions by courts.
The trial court judgment acquitting the accused in the infamous Bhanwari Devi gangrape case in Rajasthan is a rare instance of caste prejudice overtly manifested and articulated by a judge.
Bhanwari Devi was a sathin – a village level worker in the women’s development programme run by the government of Rajasthan. She had joined the programme in 1985 and was a relentless campaigner against the practice of child marriage. Bhanwari Devi had successfully prevented the marriage of the one-year old daughter of Ram Kanwar Gujar. On September 22, 1992, she was gangraped by five men, including a Gujar. The Jaipur district and sessions judge delivered the judgment on November 15, 1995. According to the judge, the accused were middle aged and therefore respectable citizens, while teenagers were the ones who usually committed rapes. The judgment went on to declare, “Since the accused are upper-caste men, the rape could not have taken place because Bhanwari was from a lower caste”.
In a series of workshops I conducted on ‘minimising the impact of biases, prejudices and stereotypes on the judicial decision making process’ with judges at the Delhi Judicial Academy, National Judicial Academy and Karnataka Judicial Academy, caste, though an important component of the Indian psyche, proved to be the most difficult area to access. The mechanism of correction envisaged in the legal system is appeal to a higher court. An aggrieved party in appeal gets an opportunity to show the flaws in the judgment of the lower court. However, the grounds which can be used in an appeal are in the domain of law. As for biases and prejudices in areas like caste, class, religion, gender and sexual orientation, self-correction by judges is the only recourse.
Rakesh Shukla is an advocate and member of the Supreme Court Bar Association.