21, Apr 2023 | CJP Team
For a successful revolution it is not enough that there is discontent. What is required is a profound and thorough conviction of the justice, necessity and importance of political and social rights.
— Dr. B. R. Ambedkar
In a harrowing incident, two infants suffered serious burn injuries after two gang-rape accused out on bail set fire to the 11-year-old Dalit rape survivor’s house in Uttar Pradesh’s Unnao district. The incident happened on February 13, 2022, when the men gang-raped the minor girl. One of the infants who was injured was the victim’s six-month-old son, who was conceived during the assault, and the other was her two-month-old sister.
According to PTI, a group of men led by the two rape suspects burned down the survivor’s home and beat up her mother after she refused to withdraw her complaint against them. Said chief medical superintendent Sushil Srivastava, the rape survivor’s infant son received 35% burns on his body while her sister received 45% burns in the incident. The two injured infants are fighting for their lives in Kanpur hospital.
Other media reports detailed how a “thorough investigation” into the incident is underway, and the Uttar Pradesh Police is looking into others named in the FIR.
It is crucial to note here that this is not the first attack on the victim’s family as a result of their refusal to drop the rape case. On April 13, five days before setting fire to the house, the survivor’s father was attacked with an axe by her grandfather and uncle, who had sided with the accused, along with four other people. The police allegedly took no action despite the father’s identification of the men involved in the attack on him. In a video of her father, he can be heard saying that he complained to the police, but they did nothing. The family has accused the local police of protecting the accused. The mother of the survivor has also claimed that their home was purposefully set on fire in order to kill her daughter’s infant son.
The post regarding the news can be read here:
While all eyes are on #AtiqueAhmed, 2 INFANTS with major BURNS are struggling for their LIVES.
One of the babies was born after a minor Dalit girl’s alleged gang-rape in Unnao last yr. 2 accused got bail last week, beat up victim’s father, cops took no action. And this happened pic.twitter.com/aV2hGoj9Jm
— Tanushree Panday (@TanushreePande) April 18, 2023
This incident comes just a day after the Uttar Pradesh chief minister Yogi Adityanath had boasted of the law and order situation in the state, saying, “UP guarantees you (businessmen) the best law and order situation.” But, not all is okay in Uttar Pradesh, and has never been for the Dalit community, especially for the Dalit women. Prior to this, in the year 2017, Adityanath had also claimed that Dalits, farmers and the poor are the government’s priority.
The situation of caste and gender-based atrocities against Dalit women in India
For most Dalit women, the reality of caste-based gender violence is perpetual, persistent and constant. In the year 2020, the chief minister had launched ‘Mission Shakti’ campaign which promised ‘zero tolerance’ towards crimes against women. However, during the same year of 2020, 604 cases of rape of Dalit women were registered in Uttar Pradesh. Of them, 122 victims were minors, according to data from the National Crime Records Bureau. It is also to be noted that in 2019, there were 545 cases of rape in UP in which victims were Dalit women, and 526 in 2018, which means, that as the years have progressed, gender and caste based atrocities faced by Dalit women have only increased. And yet, according to the Chief Minister of the state, all remains well.
But, these atrocities and discrimination faced by the Dalit survivors and families do not end at the commission of the crime. India is failing to fulfill its legal and moral responsibilities to protect Dalit women and girls from sexual violence. Survivors and their families frequently face multiple obstacles to justice, and these common impediments highlight the systemic nature of discrimination faced by Dalit communities in India’s criminal justice system and wider society. The condition has become so dire that instead of fearing the consequences of committing a crime against human body, perpetrators are well aware that if they commit crimes against Dalit community members, they will face far less punishment because crimes are rarely investigated or prosecuted. And in cases where the perpetrators belong to the dominant class, the chances of the authorities siding with the accused are higher than the case ever reaching a conviction.
It is to be noted that the conviction rates remain abysmally low for the small proportion of sexual violence assaults that India’s criminal court system does prosecute. According to the National Crime Records Bureau’s latest data, there was a 45 percent increase in reported rapes of Dalit women between 2015 and 2020. The data said 10 rapes of Dalit women and girls were reported every day in India, on average. According to the National Family Health Survey 2015-2016, sexual violence rates were highest among women from Scheduled Tribes (Adivasi or Indigenous Indians) at 7.8 percent, followed by Scheduled Castes (Dalit) at 7.3 percent, and Otherwise Backward Castes (OBCs) at 5.4 percent. For the sake of comparison, as per the data, the rate for women who were not marginalised by caste or tribe was 4.5 percent.
According to studies, the vast majority of rapes against Dalit women go unreported. Common barriers include a lack of family support and police reluctance to register complaints against upper caste men. The legal and judicial systems are inaccessible to many Dalit women. Furthermore, those Dalit women who want to file police complaints frequently face difficulties. Collecting evidence and witness testimony is even more difficult. Police are slow to register complaints, investigations into Dalit women are frequently delayed, and officials frequently deny that a rape had even occurred.
According to a Human Rights Watch report, if a case is filed, the woman will face new challenges before a judge “whose gender biases and caste affiliations can greatly influence the judgment in the case.” Additionally, fearing the retaliation from perpetrators, who are frequently in positions of relative power in the community and belong to the dominant caste, witnesses rarely agree to come forward to testify or corroborate the victim’s statement. In rare cases that they do, incidents similar to the aforementioned happen.
On March 15, 2021, a parliamentary standing committee on Home Affairs report on ‘Atrocities and Crimes against Women and Children’ was presented in the Rajya Sabha. According to the report, it was held that Dalit women faced difficulties in filing atrocity cases against them due to “poor implementation of existing laws and the apathetic attitude of law enforcement agencies.”
According to the National Council for Women Leaders, who published a report titled ‘Caste-based Sexual Violence and State Impunity,’ caste becomes a critical factor in how sexual violence survivors access justice. According to the report, even if a FIR is filed, the accused or his family threatens the woman or her family with further violence if they refuse to drop the case. Many survivors and their families also struggled to keep track of lengthy investigations and trials. Furthermore, institutions dealing with the cases, such as hospitals, frequently violated established investigation protocols.
According to the NCWL report, caste-based attitudes and discrimination pervade the entire law enforcement and criminal justice system, including the police, medical officials, prosecutors, and judges, and these attitudes impede Dalit women and girls’ access to justice. It is important to note that under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act (PoA Act), the Indian legal system has special provisions for crimes committed against people marginalised by caste and tribe, including state support and special courts to streamline cases filed under the law. However, in order for cases to be tried under the law, survivors must first report the crimes to the police, after which an investigation takes place, and only then is the case brought to trial. As per the NCWL report, access to justice is limited for women from less privileged castes, particularly in rural areas, at each stage.
The authorities’ reluctance to include appropriate provisions under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act weakens the survivor’s case. It should be noted that there is no provision for anticipatory bail under the POA Act, and the quantum of punishment in the event of conviction is higher.In 15 percent of the cases where survivors or families of victims were able to get an FIR registered, justice was stalled due to the police not including applicable provisions of the PoA Act. It is crucial to highlight here that in the aforementioned case, the rape accused hate gotten bail even after having raped a minor Dalit girl. Since the PoA act does not allow for bails to be granted the accused, it can fairly be deduced that the perpetrators had not be booked under the PoA act.
This case highlights the terrifying impunity that dominant caste rapists enjoy in India, as well as the criminal justice system’s failure to provide justice to marginalised community survivors. It is a major betrayal of the justice system’s promise to hold criminals accountable and to provide a safe haven for women in the country. This tragic Unnao case reaffirms Dalit women’s complete powerlessness in the criminal justice system and serves as yet another cautionary tale for women considering approaching the police or the courts for redress against violence. Despite the hashtags and outrage surrounding the Hathras case, sexual violence against Dalit women is not a new phenomenon.
Provisions under PoA Act for providing protection to the kins of the survivor
It is essential to highlight here that in addition to the above-mentioned protections provided to the victims of caste-based crimes under the PoA Act, the act also provides for granting protection to the family of the survivor. These provisions guaranteeing protection to the families of the survivor are owning to the atrocities, hatred and oppression faced by the marginalised communities at the hands of the dominant communities for having had the audacity to rise against them. The provisions are as follows:
Section 15A. Rights of victims and witnesses—
(1) It shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence
(3) A victim or his dependent shall have the right to reasonable, accurate, and timely notice of any Court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act.
(4) A victim or his dependent shall have the right to apply to the Special Court or the Exclusive Special Court, as the case may be, to summon parties for production of any documents or material, witnesses or examine the persons present.
(5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.
(6) Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), the Special Court or the Exclusive Special Court trying a case under this Act shall provide to a victim, his dependent, informant or witnesses–
(a) the complete protection to secure the ends of justice;
(b) the travelling and maintenance expenses during investigation, inquiry and trial;
(c) the social-economic rehabilitation during investigation, inquiry and trial; and
(7) The State shall inform the concerned Special Court or the Exclusive Special Court about the protection provided to any victim or his dependent, informant or witnesses and such Court shall periodically review the protection being offered and pass appropriate orders.
(8) Without prejudice to the generality of the provisions of sub-section (6), the concerned Special Court or the Exclusive Special Court may, on an application made by a victim or his dependent, informant or witness in any proceedings before it or by the Special Public Prosecutor in relation to such victim, informant or witness or on its own motion, take such measures including–
(a) concealing the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to the public;
(b) issuing directions for non-disclosure of the identity and addresses of the witnesses;
(c) take immediate action in respect of any complaint relating to harassment of a victim, informant or witness and on the same day, if necessary, pass appropriate orders for protection:
Provided that inquiry or investigation into the complaint received under clause (c) shall be tried separately from the main case by such Court and concluded within a period of two months from the date of receipt of the complaint:
Provided further that where the complaint under clause (c) is against any public servant, the Court shall restrain such public servant from interfering with the victim, informant or witness, as the case may be, in any matter related or unrelated to the pending case, except with the permission of the Court.
(9) It shall be the duty of the Investigating Officer and the Station House Officer to record the complaint of victim, informant or witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence, whether given orally or in writing, and a photocopy of the First Information Report shall be immediately given to them at free of cost.
(10) All proceedings relating to offences under this Act shall be video recorded.
(11) It shall be the duty of the concerned State to specify an appropriate scheme to ensure implementation of the following rights and entitlements of victims and witnesses in accessing justice so as–
(a) to provide a copy of the recorded First Information Report at free of cost;
(b) to provide immediate relief in cash or in kind to atrocity victims or their dependents;
(c) to provide necessary protection to the atrocity victims or their dependents, and witnesses;
(d) to provide relief in respect of death or injury or damage to property;
(e) to arrange food or water or clothing or shelter or medical aid or transport facilities or daily allowances to victims;
(f) to provide the maintenance expenses to the atrocity victims and their dependents;
(g) to provide the information about the rights of atrocity victims at the time of making complaints and registering the First Information Report;
(h) to provide the protection to atrocity victims or their dependents and witnesses from intimidation and harassment;
(i) to provide the information to atrocity victims or their dependents or associated organisations or individuals, on the status of investigation and charge sheet and to provide copy of the charge sheet at free of cost;
(j) to take necessary precautions at the time of medical examination;
(k) to provide information to atrocity victims or their dependents or associated organisations or individuals, regarding the relief amount;
(l) to provide information to atrocity victims or their dependents or associated organisations or individuals, in advance about the dates and place of investigation and trial;
(m) to give adequate briefing on the case and preparation for trial to atrocity victims or their dependents or associated organisations or individuals and to provide the legal aid for the said purpose;
(n) to execute the rights of atrocity victims or their dependents or associated organisations or individuals at every stage of the proceedings under this Act and to provide the necessary assistance for the execution of the rights.
(12) It shall be the right of the atrocity victims or their dependents, to take assistance from the Non-Government Organisations, social workers or advocates.]
Section 21. Duty of Government to ensure effective implementation of the Act.
(1) Subject to such rules as the Central Government may make in this behalf, the State Government shall take such measures as may be necessary for the effective implementation of this Act.
(2) In particular, and without prejudice to the generality of the foregoing provisions, such measures may include,–
(i) the provision for adequate facilities, including legal aid, to the persons subjected to atrocities to enable them to avail themselves of justice;
(ii) the provision for travelling and maintenance expenses to witnesses, including the victims of atrocities, during investigation and trial of offences under this Act;
(iii) the provision for the economic and social rehabilitation of the victims of the atrocities;
(iv) the appointment of officers for initiating or exercising supervision over prosecutions for the contravention of the provisions of this Act;
(v) the setting up of committees at such appropriate levels as the State Government may think fit to assist that Government in formulation or implementation of such measures;
(vi) provision for a periodic survey of the working of the provisions of this Act with a view to suggesting measures for the better implementation of the provision of this Act;
(vii) the identification of the areas where the members of the Scheduled Castes and the Scheduled Tribes are likely to be subjected to atrocities and adoption of such measures so as to ensure safety for such members.
(3) The Central Government shall take such steps as may be necessary to co-ordinate the measures taken by the State Governments under sub-section (1).
(4) The Central Government shall, every year, place on the table of each House of Parliament a report on the measures taken by itself and by the State Governments in pursuance of the provisions of this section.
These provisions are not talked about, and the marginalised community often remain unaware about them. The most recent instance where the family of the Dalit victim was provided police protect was that of the Hathras Rape Case. In the case of the alleged gang-rape and murder of a 20-year-old woman in Hathras in Uttar Pradesh, the Supreme Court bench comprising the then Chief Justice of India S A Bobde and Justices A S Bopanna and V Ramasubramanian had asked the UP state government if witnesses in the case had been provided protection and if the family of the victim had a lawyer. In a compliance affidavit filed in the top court, the Yogi Adityanath-led government said “in order to ensure the security of victim’s family/witnesses, three-fold protection mechanism has been devised” — armed constabulary component, civil police component comprising of guard, gunners and shadows and installation of CCTV cameras and lights.
It is unfortunate that, despite laws aimed at protecting the rights of individuals from the marginalised community, the situation continues to deteriorate and is becoming worse. These laws, designed to protect human rights, remain out of reach, continuing to be on paper while the perpetrators escape. Even after these crimes are committed openly and visibly, the state and parts of society in India conspire to downplay or erase the links between sexual violence and caste hierarchies. Today, as more Dalit women dare to stand up to caste oppression, the backlash appears to be more brutal than ever. It is the responsibility of the state and its agencies, as well as the citizens, to ensure that the perpetrators of these crimes are brought to justice. It is critical that, in the face of a consistent pattern of families of Dalit victims and rape survivors facing backlash, human rights and Dalit rights defenders hold consistent protests so that the state is held accountable to providing the police protection guaranteed under laws to the families of the victims, in addition to the other legal provisions available for safeguarding the Dalit community’s rights.
Image Courtesy: muslimmirror.com