Completing the insult

The issue of caste-based reservations continues to simmer in India, with an ongoing tussle taking place between the legislature and the judiciary. In January, the country's Supreme Court issued a notice on a petition by the All India Christian Council that sought reservations for all Dalits irrespective of their religious faith. Dalit Sikhs and Dalit Buddhists had earlier gained the Scheduled Caste (SC) status through amendments, and this has been a longstanding demand on the grounds that socio-economic and educational backwardness of Dalits who have converted to Christianity and Islam is no different from that of Dalit Hindus.

Reservation has long been one of the flashpoints in the debate over caste identity. Indeed, the clamour to be labelled as 'backward' is a phenomenon peculiar to India, with its affirmative action predicated on just this term, as defined by caste. This has led to a number of castes that, though today dominant in some regions – such as the Meenas and Gujjars in Rajasthan – are seeking reservation claiming 'backwardness'. The violent protests in 2008 by Gujjars in Rajasthan resulted in reservations for the community, along with 14 percent for other 'economically backward castes' in employment and in educational institutions. At the behest of a letter from some upper-caste students, however, the Rajasthan High Court stayed these quotas on the grounds that it exceeded the overall 50-percent limit fixed for reservations. Similarly, the issues of 27-percent reservation for Other Backward Castes (OBCs) in higher education, and the extent of reservations permissible and reservations for Muslims, are pending before various Indian courts, including the Supreme Court.

The fact that K G Balakrishnan became India's first Dalit chief justice in 2007 is clearly remarkable. Yet this could be likened to the phenomenon of how women heads of state are so common in Southasia, despite the fact that the status of women has been little affected. Along the same lines, Balakrishnan's stature is unlikely to have a significant impact on the relationship between caste and the judiciary, with respect to the judgements delivered. Meanwhile, the deep-rooted caste prejudice towards Dalit judges continues to pervade the largely upper-caste institution itself. An indicator of this relationship was noted by the constitutional expert and jurist Fali Nariman, in a 2006 interview: "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."

A widely reported incident from about five years ago offers additional indications regarding this state of affairs. In May 2005, the chairman of the Industrial Development Bank of India (IDBI), V P Shetty, was arrested following a complaint by IDBI General Manager Bhaskar Ramteke under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The chairman was alleged to have hurled a volley of casteist expletives at Ramteke. Far from going into the merits of the case, however, the Bombay High Court held that the offence of insulting or humiliating a member of a Scheduled Caste in "any place within public view" had not been established as required, as the incident had taken place in a "private room". In fact, the incident took place in a public space – 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 re-adjustment of the SC/ST backlog – the large number of SC/ST reserved posts that had not been filled – ahead of the merger of IDBI Bank and IDBI Ltd. More importantly, of course, this is just one among a plethora of instances of the humiliation of 'lower' caste individuals in public life, and the subsequent lethargic attitudes of courts in implementing legislation dealing with caste-based discrimination.

Phulsing's cases
In India, there are two primary pieces of legislation that deal with caste discrimination, which attempt to concretise the constitutional abolition of 'untouchability'. The first, which became law in 1955, is the Protection of Civil Rights Act, or PCRA; the second, as noted earlier, is the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, commonly known as the Atrocities Act. Let us briefly take a look at some of the judgments and interpretations that have been given by courts with regards to these two pieces of legislation over the past half-century, to better understand the attitude of the Indian judiciary with respect to caste. It should be noted at the outset that the judges trying these cases are well aware that the matters pertain to offenses of caste discrimination, and it can be assumed that the judges are making all conscious efforts to try the cases in an impartial manner – that is, free from caste bias and prejudice. Nonetheless, the deep-rooted nature of caste, perhaps at a subconscious level, is found reflected time and time again under these anti-discriminatory pieces of legislation.

In 1996, a case was filed under both the PCRA and the Atrocities Act against the former chief minister of Kerala, E Krishnan Nayanar, for having made casteist remarks against one Kuttappan while contesting a by-election to the Kerala legislative assembly. The complaint was that Nayanar made derogatory remarks about Kuttappan, contemptuously calling him a Harijan at a party convention. Yet despite the fact that the PCRA provides that any adverse act against a person belonging to the Scheduled Caste category should be presumed to have been done on the grounds of untouchability, the Kerala High Court held that there had been no offence under the statute, because it could not be said that "the complainant was insulted or attempted to be insulted on the ground of untouchability". With regards to the Atrocities Act, the court ruled that though the incident did take place in public view, the offence of insult or humiliation was not "complete", as Kuttappan had not been present at the public meeting. The court went on to observe that it was only certain offences – such as the dumping of excreta, waste matter or carcasses within the premises of a member of the SC community – that need not be done in the presence of the person to constitute an insult.

The object of the PCRA, which was originally enacted in 1955 as the Untouchability Offences Act, is to punish the preaching and practice of untouchability. Importantly, it creates a presumption that an act was done due to anti-'untouchable' bias. Yet in a landmark case in Madhya Pradesh in 1991, the High Court took the view that the PCRA presumption had been rebutted. The details are as follows: Phulsing, a high-caste thakur and ex-malgujar (revenue-collectors) had been extracting begar (bonded labour) from Balla, who was a chamar, considered 'untouchable'. Phulsing then had Balla's house demolished and abducted his wife for five days, while also threatening to kill Balla by running him over with his tractor. Balla reported the entire incident to the police, after which Phulsing shouted at him, "Chamra mere virudh report kyon ki? Main tumse manhani ke 5000 rupaye loonga!" (You Chamar, why did file a report against me? I will take 5000 rupees from you for defamation!). In a second case, also before the Madhya Pradesh High Court, the same Phulsing became embroiled in a land dispute with one Parsadi, also a Chamar. Phulsing threatened and abused Parsadi, yelling "Chamra b******ke jagah chod dena nahi to goli maar doonga!" (You Chamar f***er, leave here or I will shoot you dead!). Phulsing also wrongfully stopped Parsadi's wife when she was passing in front of his house, telling 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!") In deciding whether Phulsing had committed the offences, the High Court justices evolved two tests to determine whether any insult falls within the ambit of the law. According to the court, the first test is to ask the question, whether the [insult] would have taken place irrespective of the fact whether the victim was or was not a member of the Scheduled Caste. If yes, the insult was insult simpliciter outside the ambit of clause (d) [of the PCRA]. On the other hand, if [the] insult had taken place only because the victim was a member of the Scheduled Caste, and it would not have taken place if he had been of higher caste, then [the] insult was [an] insult on grounds of untouchability.

The Madhya Pradesh court thus decreed that, if other issues were involved between the parties, even casteist abuse aimed at a member of a Scheduled Caste might not amount to insult on the grounds of untouchability.

The second test formulated by the court was that if the insult was part of a personal quarrel between a member of a higher caste and member of a Scheduled Caste, then the insult could not be considered to have been based on grounds of untouchability. Thus, only insults in the absence of a quarrel could fall within the ambit of such an offence. However, as in the case involving Phulsing, quarrels that form the backdrop of casteist abuses, insults and humiliations are often rooted in the castes of the individuals concerned – they are not personal quarrels between equals. The facts that Phulsing was a Lodhi Thakur and Balla and Parsadi belonged to the Scheduled Caste community can obviously not be disassociated from the issues of begar, abduction or displacement from land, which are at the root of what the court chooses to see as a 'personal quarrel', taking the insult outside the ambit of the act. In fact, the court goes on to make the 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."

The two tests evolved as general principles to interpret the legislation. The court thus held that, as both Balla and Parsadi had had a personal quarrel with Phulsing, the insults were simply insults and had not come about due to grounds of untouchability. It was incidental, the court stated, that Balla, Parsadi and his wife belonged to the Scheduled Caste community – the insult would purportedly have been offered "no matter to what caste Balla belonged". The judgment held that no offence had thus been made, and acquitted Phulsing in both criminal cases.

'General' abuse'
In the context of social disabilities, the PCRA makes clear that offense includes denial of service or discrimination on the grounds of untouchability in terms of access to shops, restaurants, hotels or utensils used in these places. Yet in a case in 1981 in which separate cups and saucers had been used for Dalits lest they 'pollute' the hotel, the Karnataka High Court acquitted the hotel proprietor for three reasons: on the grounds that a 12-hour delay had taken place before the complaint had been filed, that the prosecution witnesses were related to each other, and that the complaint had not mentioned that the accused had kept the hotel's tableware separately.

The bias of the court is reflected in the reasons for acquittal offered in the judgment. First off, given the caste realities, a 12-hour delay in reporting the case against an upper-caste hotel proprietor is not of sufficient significance to merit acquittal. Similarly, given strong family ties and the tendency of many people to travel with relatives, the prosecution witnesses being related is explainable and need not have been taken as another reason to acquit. Finally, it may be enough for the culpability of the proprietor if the witnesses establish that the hotel kept separate cups and saucers for Dalits, even though they may not be able to testify that it is the accused himself who had kept the tableware separately.

For background to another case, it is important to understand that encouraging any person, class of persons or the public to practice untouchability or to insult a member of a Scheduled Caste are both offences. To celebrate the wedding of his son, one Duni Chand had invited all the residents of his village, including Dalits, for a meal at his house. Yet as two Dalits, Nanku and Chana, were eating the meal, a group of higher-caste neighbours arrived and complained that they would not eat at the house; they turned out Nanku and Chana out of the house. In the subsequently filed case, the Supreme Court of India in 1991 observed that the evidence of the complainants' eyewitnesses was merely of a "general" nature, stating that the specific terms of abuse that had allegedly been used had not been put before the court. The justices ultimately held that no offence had been made clear under the PCRA, and the accused were acquitted.

From these and other instances, a pattern has emerged. In the few cases that do reach the courts, the justices tend to seize upon some reason or the other to acquit the accused – rather than interpret the provisions to further the objective of the legislation, which is to do away with untouchability. In the Chand case, for instance, it should have been enough to establish the culpability of the upper-caste accused if the evidence established that they refused to eat in the same house where two Dalits were eating.

The PCRA and the Atrocities Act deal directly with caste discrimination. However, some judgments under other pieces of legislation are also illustrative of sharply entrenched caste biases and prejudices at work in the interpretation of Indian law. Following the burning of Roop Kanwar on her husband's pyre in 1987 in Deorala, the Rajasthan Sati (Prevention) Act, was enacted, outlawing ceremonies related to the glorification of 'sati'. However, a festive chunari (dupatta) draped on a trishul was paraded on the 13th day of Roop Kanwar's death, and eventually set ablaze in the presence of thousands, including high-level legislators. Cries of "Sati mata ki jai!" rent the air. Instead of taking note of the crime of glorifying widow immolation, the court, displaying its caste bias, interpreted the term sati as a woman who is virtuous, of strong character and devoted to her husband, and acquitted the powerful upper-caste Rajputs charged with sati glorification.

Finally, the reasons given by the trial court in Rajasthan while acquitting the accused in the infamous 1992 gang rape of Bhanwari Devi speak for themselves. Bhanwari had worked as a village-level worker in a women's development programme, and was a relentless campaigner against the practice of child marriage. Five men were accused of raping here on 22 September of that year, including the father of a one-year-old girl whose child marriage had been successfully prevented by Bhanwari and others. Yet the district and sessions judge in Jaipur acquitting the accused, declaring: "Since the accused are upper-caste men, the rape could not have taken place because Bhanwari was from a lower caste." Although the case is still pending in a higher court, such a ludicrous finding clearly ignores the widespread rape of Dalit women by upper-caste men, a phenomenon in which sexual violence transcends norms of untouchability.

The administration of justice free of bias based on class, caste, religion, community or gender is a vital component of governance, and forms the underpinning of an inclusive democracy. Any discrimination against a section, class or category of persons in the working of the justice-delivery system undermines confidence and trust in governance. As such, the decisions of judges affect, in a vital way, the lives of individuals as well as impact society as a whole. It must be noted that, as of now, there is no caste-based reservation in the Indian judicial service, thus leading directly to today's unrepresentative judiciary. Accountability of judges, especially in the High Courts and Supreme Court, is an issue that surfaces from time to time, but few institutional mechanisms to ensure accountability have been put in place. As a facet of impartiality, there is an urgent need to devise ways and methods to reduce the impact of personal biases, prejudices and stereotypes in the judicial decision-making process.

~ Rakesh Shukla practices law at the Supreme Court of India, New Delhi.

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