Editorials/Opinions Analyses for UPSC – 1 June 2021

Contents

1. Recognising caste-based violence against women

Recognising caste-based violence against women

Context:

Regarding the horror of the gang rape of a 19-year-old Dalit woman in Hathras in 2020, activists, academics and lawyers argued that the sexual violence took place on account of the woman’s gender and caste and that the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA Act) must be invoked.

Relevance:

GS-II: Social Justice (Issues related to Women, Schemes for Vulnerable Sections of the population, Government Interventions and Policies, Issues arising out of the design and implementation of Government Policies)

Dimensions of the Article:

1. Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act or PoA Act)
2. Amendment to the SC and ST (Prevention of Atrocities) Act
3. Recent Cases and Judgements
4. Positive Aspect: The intersectional approach
5. Not so positive aspect: Setting aside of the PoA Act
6. Patan Jamal Vali case

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act or PoA Act)

• The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 is an Act of the Parliament of India enacted to prevent atrocities against scheduled castes and scheduled tribes.
• The Act is popularly known as the SC/ST Act, POA, the Prevention of Atrocities Act, or simply the Atrocities Act.
• It was enacted when the provisions of the existing laws (such as the Protection of Civil Rights Act 1955 and Indian Penal Code) were found to be inadequate to check these crimes (defined as ‘atrocities’ in the Act).

The salient features of the SC/ST Act are

1. Creation of new types of offences not in the Indian Penal Code (IPC) or in the Protection of Civil Rights Act 1955 (PCRA).
2. Commission of offences only by specified persons (atrocities can be committed only by non-SCs and non-STs on members of the SC or ST communities. Crimes among SCs and STs or between STs and SCs do not come under the purview of this Act).
3. Defines various types of atrocities against SCs/STs (Section 3(1)i to xv and 3(2)i to vii).
4. Prescribes stringent punishment for such atrocities (Section 3(1)i to xv and 3(2)i to vii).
5. Enhanced punishment for some offences (Section 3(2)i to vii, 5).
6. Enhanced minimum punishment for public servants (Section 3(2)vii).
7. Punishment for neglect of duties by a public servant(Section 4).
8. Attachment and forfeiture of property (Section 7).
9. Externment of potential offenders (Section 10(1), 10(3), 10(3)).
10. Creation of Special Courts (Section 14).
11. Denial of anticipatory bail (Section 18).
12. Denial of probation to convict (Section 19).

Amendment to the SC and ST (Prevention of Atrocities) Act

• Delineates specific crimes against Scheduled Castes and Scheduled Tribes as atrocities and describes strategies and prescribes punishments to counter these acts.
• Identifies what acts constitute “atrocities” and all offences listed in the Act are cognizable. The police can arrest the offender without a warrant and start an investigation into the case without taking any orders from the court.
• The Act calls upon all the states to convert an existing sessions court in each district into a Special Court to try cases registered under it and provides for the appointment of Public Prosecutors/Special Public Prosecutors for conducting cases in special courts.
• Creates provisions for states to declare areas with high levels of caste violence to be “atrocity-prone” and to appoint qualified officers to monitor and maintain law and order.
• Provides for the punishment for wilful neglect of duties by non-SC/ST public servants.
• It is implemented by the State Governments and Union Territory Administrations, which are provided due central assistance.

Recent Cases and Judgements

• On the heels of the Hathras crime regarding the gang rape of a 19-year-old Dalit woman in Hathras in 2020, came a new judgment of the Supreme Court (Patan Jamal Vali v. State of Andhra Pradesh) addressing the intersectionality of caste, gender and disability in the case of a blind 22-year-old Dalit woman who was the victim of sexual assault.
• The trial court and the High Court had convicted the accused for rape under Section 376 of the Indian Penal Code (IPC), and under Section 3(2)(v) of the PoA Act, and sentenced him to life imprisonment.
• The Supreme Court, in its judgment confirmed the conviction and the punishment for rape under the IPC but set aside the conviction under the PoA Act.
• On the one hand, this judgment is a huge step forward as the court used the opportunity to bring recognition to intersectional discrimination faced by women on the grounds of sex, caste and disability.

Positive Aspect: The intersectional approach

• The Supreme Court, in a first, elaborated on the need for an intersectional approach, to take into account the multiple marginalities that the victim faced.
• It relied on well-known intersectional theorists such as Kimberlé Crenshaw who first coined the term ‘intersectionality’ which was used in the intersectional discrimination faced by black women in the U.S.
• The court recognised that when the identity of a woman intersects with her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds.
• The SC said we need to understand how multiple sources of oppression operated cumulatively to produce a specific experience of subordination for the blind Dalit woman.
• Placing special emphasis on making the criminal justice system more responsive to women with disabilities facing sexual assault, the court also laid down directions to train judges, the police and prosecutors to be sensitised in such cases.

Not so positive aspect: Setting aside of the PoA Act

• But despite using an intersectional lens, the court set aside conviction under the PoA Act.
• The PoA Act was enacted to address atrocities against persons from SC and ST communities and was amended in 2015 to specifically recognise more atrocities against Dalit and Adivasi women including sexual assault, sexual harassment and Devadasi dedication.
• The PoA Act states that if any person not being an SC/ST member commits any offence under the IPC punishable with imprisonment of 10 years or more against a person on the ground that such a person is from an SC/ST community, he shall be punishable with imprisonment for life and with fine. This was amended in 2015, to change the phrase “on the ground that such person is a member of SC/ST” to “knowing that such person is a member of SC/ST”.

Previous cases of setting aside the PoA Act

In cases of sexual violence against Dalit and Adivasi women, courts have almost consistently set aside convictions under the PoA Act.

• In 2006 in Ramdas and Others v. State of Maharashtra, where a Dalit minor girl was raped, the Supreme Court set aside the conviction under the PoA Act stating that the mere fact that the victim happened to be a woman who was member of an SC community would not attract the PoA Act.
• In Dinesh Alias Buddha v. State of Rajasthan (2006), the Supreme Court held: “It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste.”
• In Asharfi v. State of Uttar Pradesh (2017), the court held that the evidence and materials on record did not show that the appellant had committed rape on the ground that the victim was member of an SC community.
• In 2019, in Khuman Singh v. State of Madhya Pradesh, a case of murder, again the court held that the fact that the deceased was a member of an SC community was not disputed but there was no evidence to show that the offence was committed only on that ground; conviction under the PoA Act was set aside.

Burden of proof in all the examples above

• In all these judgments, the court held that there was no evidence to show that the accused committed sexual assault on the ground that the victim was member of an SC/ST community.
• The only evidence that can be led is that the victim was from an SC/ST community and that the accused was aware of that.
• When a woman is from a marginalised caste and is disabled, she faces discrimination due to her sex, caste/tribe and disability, all of which render her vulnerable to sexual violence. This is what intersectionality theory requires us to recognise.

Patan Jamal Vali case

• In the Patan Jamal Vali case, the court using the intersectional lens recognises that evidence of discrimination or violence on a specific ground may be absent or difficult to prove.
• It agreed with the finding of the sessions judge that the prosecution’s case would not fail merely because the victim’s mother did not mention in her statement to the police that the offence was committed against her daughter because she was from an SC community.
• It also confirmed that it would be reasonable to presume that the accused knew the victim’s caste as he was known to the victim’s family.
• Despite such a nuanced understanding, the court held that there was no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the victim’s caste.
• It is unfortunate that intersectionality, which seeks to recognise the multiple grounds of marginalisation faced by women, was used by the court to state that it becomes difficult to establish whether it was caste, gender or disability that led to the commission of the offence.

-Source: The Hindu