“The struggle of man against power is the struggle of memory against forgetting.”
Milan Kundera, 1994
The decision of the two-judge bench of the Supreme Court in SK Mahajan vs State of Maharashtra (criminal appeal no.416 of 2018) delivered on March 20 forces a counter-constitutional judicial amnesia with respect to atrocities suffered by scheduled castes and tribes and the historical/constitutional background of the SC & ST Prevention of Atrocities Act and its continuing and increasing relevance today.
In the process of attempting to wipe out judicial memory on the question of atrocities and structural violence based on caste discrimination, the court takes easy recourse to the language of public morality, setting aside the centrality of constitutional morality to constitutional reasoning. In this brief comment, which does not go into all the aspects of the judgment that are deeply problematic, I will look at the major assumptions the judgment makes and its misreadings.
It is useful, although painful, to begin with the approach of the Supreme Court to this case, which concerns the “fear” of “false accusations” and “allegations” against “innocent people” who are at the mercy of “unscrupulous” elements out to trap and “stigmatise” them through arrest and denial of bail by filing cases of atrocity against these “unsuspecting” persons. The unsuspecting, innocent persons are persons belonging to non-SC castes in positions of authority/power either as public servants or employers. The unscrupulous elements are all persons belonging to the Scheduled castes holding primarily semi-skilled jobs in the cases discussed.
The specific case before the court concerned a storekeeper who lodged a complaint against his superior officers who had made adverse remarks in his annual confidential record. Sanction to proceed against them was refused by the Director of Technical Education, Government of Maharashtra, who, the complainant argued, exceeded his jurisdiction in refusing sanction, and therefore obstructed the course of justice under the Act. The intervenor supporting the appeal is a lady assistant professor who charged the same storekeeper with sexual harassment, against whom he filed a case under the Prevention of Atrocities Act.
This is a case in which specific facts were before the court, and could, in my view, have simply been decided on merits. Instead, the court embarks on a discussion on the unconstitutionality of provisions under the SC/ST Prevention of Atrocities Act, and declares its rampant misuse – with easy recourse to stereotype and selective presentation of facts/evidence. In doing this, it makes a general derogatory comment on an entire class of persons who come under the protective umbrella of this legislation.
The Supreme Court quotes extensively from five earlier judgments of high courts, three from Gujarat, one from Maharashtra and one from Tamil Nadu that repeatedly use terms (highlighting them in bold) like “malicious complaint,” “malicious prosecution,” “malicious complainant”, speaking of how the act was used “as an instrument of blackmail” to wreak “personal vengeance” and settle scores arising from “personal vendetta”, by “scheming, unscrupulous complainant” – and concludes that the “above judgments are merely illustrations to show that the abuse of law was rampant” (para 22).
The argument of the intervenor’s counsel that since monetary compensation is available to complainants under the Rule 12(4) framed under the Act, it “is also prone to misuse on account of monetary incentive being available merely for lodging a case” (para 24). In not rebutting this serious allegation, nor distancing itself from the plea of the intervenor, the Supreme Court throws itself open to the conclusion that it, in fact, subscribes to this view.
The next paragraph in the judgment refers to data from the National Crime Records Bureau for 2016 pertaining to the Prevention of Atrocities Act. Here again, the court provides a partial account of the data that lends it to a distorted reading. Referring to Table 7A.4, “Police Disposal of Crime/Atrocities against SCs cases (State/UT-wise)-2016”, the court points out that “in the year 2016, 5347 cases were found to be false cases out of the investigated out of SC cases [sic].” This figure is specifically mentioned in the judgment, alongside figures for acquittals and withdrawals.
A careful look at the NCRB data shows us that the previous column in the same table tells us that 2,150 cases were found to be “true but insufficient evidence.” The total number of cases for police investigation in 2016 were 56,299 (all-India). For the same year, according to Table 7A.5 of the report, the total number of cases before courts under (a) the Prevention of Atrocities Act alone, (b) the act read with IPC and (c) cases under the Protection of Civil Rights Act was 144979; the cases resulting in acquittal or discharge by courts numbered 10862; the conviction rate was 25.7 percent; and the pendency rate 89.6% (NCRB. Crime in India 2016: Statistics. Ministry of Home Affairs, pp. 299-300).
A basic fact of law is that acquittal does not necessarily prove innocence – it may also point to inadequate investigation and evidence on record, or procedural infirmities. The conflation of acquittals with false cases in an account by the apex court is cause for concern. Further, by providing only the figure for false cases, without placing it within the larger context of cases coming up before courts and being decided, the court presents a counter-factual account of cases pertaining to the commission of atrocities against Scheduled castes and Scheduled tribes. It engages in a counter-constitutional, reductionist rhetoric that is anecdotal and totally unsupported by evidence and data and does not reflect the social realities these cases rest on.
It is to the social realities of atrocities against the Scheduled castes and Scheduled tribes that we now turn.
As late as 2015, it is still possible in our country for a public university to officially declare a social boycott of Dalit students, soliciting the active intervention of the ruling party and its student body, leading to the suicide in January 2016 of one of the students boycotted – Rohith Vemula; In March 2016, Shankar, a 21-year-old Dalit man was hacked to death in broad daylight in Udumalaipet in Tamil Nadu and his non-Dalit wife Kausalya murderously attacked by her family for violating caste codes. In April 2016, a young Dalit student in Kerala, Jisha, was sexually assaulted and brutally murdered in her own home, a 150 sq. ft. house in a canal Poramboke – and there were, mysteriously, no eyewitnesses, nor did anyone attempt to rescue her. Since January 2018, Dalits in Vadayampadi near Kochi in Kerala have been resisting the building of a “caste wall” by the dominant castes, to prevent their entry into common spaces in the village.
And we can go back year by year to the year of the adoption of the Constitution traveling from state to state in the country for accounts of such violence. In its recounting of the logic of the SC/ST Prevention of Atrocities Act, how did the judges of the Supreme Court forget that this – the caste line – is our present reality and the reason why the act continues to be a critical protection? Can a constitutional court adopt a partisan and derogatory view of a particular class of complainants when ALL complainants in such cases belong to the Scheduled Castes and Scheduled tribes? Can the apex court ignore the fact that complaints before courts are under a legislation that was enacted to provide protection against structural violence and discrimination to groups rendered vulnerable by the power of dominance and privilege entrenched in the caste order?
The judgment, of course, must base itself on a constitutional reading – it fulfills this requirement mechanically by a restricted reading of basic structure as Articles 14 and 21, declaring that the non-Dalit appellants’ rights to equality and liberty stand violated because of these malicious complaints. It is constitutional commonsense that in a case of the protection of civil rights or prevention of atrocities against Dalits and Adivasis, Article 14 and 21 are only intelligible in their intersection with Article 15 and Article 17 (which prohibit vertical and horizontal discrimination and untouchability).
These articles (15 and 17) do not figure at any point in the discussion on the specific reading of basic structure with reference to caste-based discrimination. Instead, a series of untenable comparisons are made between the penal provisions of this Act and the (more lenient!) penal provisions in the Terrorist and Disruptive Activities (Prevention) Act, the Unlawful Activities (Prevention) Act and offences under the Narcotic Drugs and Psychotropic Substances Act – particularly in matters of arrest and anticipatory bail.
The biggest travesty is, of course, quoting Dr.Ambedkar’s last speech in the Constituent Assembly to support its assertion that persons from the Scheduled castes are perpetuating casteism and eroding the environment of peace and fraternity envisaged by Dr. Ambedkar through their false and malicious litigation. In a section titled “Further consideration of potential impact of working of Atrocities Act on spreading casteism”, the court observes that “it is necessary to express concern that working of the Atrocities Act should not result in perpetuating casteism which can have an adverse impact on integration of the society and the constitutional values” (para 42). Two paragraphs from Dr Ambedkar separated by ellipses are quoted in support of this view:
“These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.”
“In India there are castes. The castes are anti-national. In the first place because they bring about separation in social life. They are anti-national also because they generate jealousy and antipathy between caste and caste. But we must overcome all these difficulties if we wish to become a nation in reality. For fraternity can be a fact only when there is a nation. Without fraternity, equality and liberty will be no deeper than coats of paint.”
The ellipses are crucial because they cover up what the judges do not believe to be true although they cannot afford to ignore the figure of Dr Ambedkar in a decision on caste atrocity:
“We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.
The second thing we are wanting in is recognition of the principle of fraternity. what does fraternity mean? Fraternity means a sense of common brotherhood of all Indians, of Indians being one people. It is the principle which gives unity and solidarity to social life. It is a difficult thing to achieve.”
What does it signal when the highest court in the country asserts, (mis)appropriating Dr Ambedkar in the process, that it is Scheduled caste complainants who perpetuate casteism and obstruct fraternity, equality and liberty in India today?
Kalpana Kannabiran is Professor & Director, Council for Social Development, Hyderabad.