Mumbai: Planting 50 saplings or teaching Dr Babasaheb Ambedkar’s anti-caste texts at a Buddha Vihara is all it takes to prevent caste Hindu persons from being arrested in a caste-related crime in Maharashtra.
In two separate orders issued recently, exclusively accessed by The Wire, the Bombay high court has taken a rather strange stand to “reform” the accused persons instead of initiating any punitive action against them, as mandated by law. In the orders, Justice Sadhana Jadhav directed the accused to do a range of “reformative deeds”, including planting trees and teaching Scheduled Caste (SC) students at a Vihara.
The orders were issued in the pre-arrest applications filed by two accused, in two separate cases, against the allegation that they had indulged in casteist activities. In one case, the accused allegedly public humiliated and violently attacked a person. Police have even recovered video recording of the crime.
The two cases
Earlier this month, Sambhaji Shirsat, a member of an education society in Pune and an accused in one of the two cases, moved the Bombay high court against the charges of assault and Prevention of Atrocities Act. He had allegedly abused one of the senior teachers in the school who demanded his due promotion. The teacher, 50-year old Madhukar Bahule, who belongs to an SC community, had applied for the post of the school’s principal on the ground that he was the senior-most teacher and hence most eligible.
Bahule was denied his due promotion. When he moved the education department of the Pune Zilla Parishad (ZP) against the school’s decision, Shirsat, opposing the appeal, allegedly abused Bahule on the basis of his “low caste”. He is also accused of beating Bahule, in public, with his footwear. Bahule suffered severe injuries and a fracture on his hand.
The police, according to Bahule, had on first instance refused to take up his complaint. When he approached them again two days later, on June 29, with a written application, the complaint was finally registered. The police, however, did not make any arrest in the case.
Soon after the FIR was filed, the accused approached the sessions court in Pune, which rejected his anticipatory bail application. However, when Shirsat moved the Bombay high court, Justice Jadhav granted him interim relief against his arrest and observed:
“The appellant (Shirsat) voluntarily undertakes to visit the Buddha Vihar in Mangalwar Peth and read to the young students belonging to Scheduled Caste the writings/ thoughts/ theories propounded by Dr. Babasaheb Ambedkar on caste annihilation and secularism for two hours on every Sunday for three consecutive Sundays commencing from 23rd of June 2019 under the supervision of a police constable to be deputed by Samarth Police station.”
The judge has also ordered that Shirsat should “undertake to plant 50 saplings/ plants in any private aided school within three weeks.”
In the judge’s opinion, these “services rendered by the appellant (Shirsat) will enhance their (children’s) understanding on caste annihilation and secularism.” The judge, however, so far has only granted an interim relief against the pre-arrest bail application and has scheduled the next hearing on July 9.
The same judge, on June 11, in another case issued a similar order while granting interim relief. Justice Jadhav ordered that the accused, Milind Patil, be made to submit a written apology against the casteist slurs he had hurled at a co-member of the cooperative society following some verbal altercation.
Patil too had approached the high court after his pre-arrest bail application was rejected by the Pune sessions court. While the direction of issuing written apology was not recorded in the court’s daily order, both the assistant public prosecutor Suraj Hulke and the complainant’s lawyer Mohan Wadekar confirmed that the court directed the accused to submit a written apology on June 25.
Another attempt to dilute the special law?
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which was last amended in 2018, is a special social law which prevents pre-arrest bail for caste-motivated crimes committed against the SC and ST communities. This special provision was made considering the basic principle that the act of atrocity stems from the skewed social order that is discriminatory towards the SC and ST communities in the country.
Bahule’s lawyer, Mohan Wadekar, who opposed the ABA application in both the lower court and the high court, called the court’s order untenable and goes against the principle of natural justice. “There is no provision in law that provides for such reformatory approach. Section 18 (A) inserted in to the Atrocities Act in August 2018 clearly mentions the provisions of Criminal Procedure Code (CrPC) will not apply and the accused can’t be protected against arrest,” Wadekar told The Wire.
Wadekar further points to the pattern seen in the atrocity cases and how there have been several attempts made to dilute it. “Already, the conviction rate under the law is abysmally low. There have been several attempts made, both at the legislative and at the executive level, to not implement the law. A court delivering such orders only sets another bad precedent,” Wadekar feels.
On March 20, last year, a Supreme Court bench of Justices A.K. Goel and U.U. Lalit, in their controversial 89-page judgment, claimed that the anti-atrocities law, which protects Scheduled Castes and Scheduled Tribes from casteist slurs and discrimination, has become an instrument to “blackmail” innocent citizens and public servant.
The judgment was widely criticised, even leading to widespread protests. At least 11 people died in ensuing protests. The Centre was pushed to file a review petition and also amend the 1989 Act back to its original form, denying protection against the arrest.
Along with the Centre, several individuals have also moved an appeal before the apex court, and the order is currently pending.
In both cases, the Pune police are yet to complete their investigation, and the trial is yet to commence. Yet, the Bombay high court judge ordered the accused to take up voluntary work in lieu of their arrest.
Legal experts say the high court’s order is a “hazardous move”, not just to the Act and those victims seeking justice, but also to the accused. “This is a presumptuous order. Instead of deciding whether there is a need for the accused persons’ physical custody, the court has overstepped by passing an order to undertake reformative action. By asking the accused to teach or issue a written apology, the court has assumed that they are guilty of the crime, even before the trial could commence. It is against the principle of natural justice,” says Nitish Navasagare, an assistant professor at the Indian Law Society in Pune and the founding member of Dalit Adivasi Adhikar Andolan.
Navsagare points out that as a constitutional court, the Bombay high court is bound to protect the victim’s right to life and liberty as mandated under Article 17. “Instead, the court has taken a strange stand to reform the accused. How will teaching at a Buddha Vihara or planting trees cleanse the deep- rooted hatred which has a history of over 5,000 years?” Navsagare asks.
He compares the high court’s stand to that of a regressive Khap panchayat. “There is no logical reasoning or sense of justice in Khap Panchayat diktats. By overlooking the philosophy behind the atrocities Act, the Bombay high court too has acted in arbitrary manner. And it is a worrying trend,” he feels.
The victims are now preparing to appeal the order before the Supreme Court. “We are hoping the state government takes note of the arbitrary nature of these orders and challenges it in the Supreme Court. If not, we will approach the apex court,” Wadekar told The Wire.