The Law Is
Casteist Part II
Lawyers Disha Wadekar and Nikita Sonavane give deep and searing insight into their personal and intellectual understanding of the inherent casteist bias of the Indian legal system, based on their many years of work and engagement as lawyers and researchers.
Words by Nikita Sonavane and Disha Wadekar
December 2, 2020
This is the second part of a translated and edited transcript of a conversation first had on ‘Lights, Camera, Azadi’ a podcast hosted and produced by Vandit Jain. The podcast, which aired on 19 September 2020, may be found here. Read the first part here.
Note: This podcast was recorded before the brutal gangrape of a Dalit woman in Hathras, Uttar Pradesh. The Hathras gang rape case is a crucial reminder that a feminist engagement with criminal law has invisiblised caste while addressing the question of sexual violence. The use of the law through the subversion of the Atrocities Act by the police to further perpetuate violence against the victim is yet another example of the systemic targeting of Dalit, Bahujan and Adivasi, and Vimukta communities by the criminal justice system. The compromised investigation in Hathras due to the complicity of the police, the state administration is a reflection of the fact that caste actors have been gatekeeping the criminal justice system. This incident is reflective of how the law and justice are tainted with caste. This instance, therefore, calls for a deeper examination of the role of the law in reifying and upholding caste hierarchies.
NIKITA SONAVANE: There exists a politics of documentation, and the way in which the documents are created is a problematic process. The state machinery requires that you prove that which has always been your identity, and they want to achieve this on their own terms. For them, any proof is valid only if they deem it to be.
We operate in a system which functions strongly on the process of documentation, transcribing each step of the legal procedures on paper. It is meant to be adhered to in order to safeguard the rights of the people. In criminal cases, the police are required to create an arrest memo while taking an offender into custody. Yet, when people from a marginalized community approach the police to report a criminal offence, often we find that even FIR’s are not lodged owing to the marginalized status of the people. This politics of documentation operates on two levels. When it comes to safeguarding the rights of the people of a marginalized community, the documentation becomes irrelevant and often is not adhered to. On the other hand, when it comes to depriving the marginalized communities of their rights, the documentation becomes paramount.
DISHA WADEKAR: I agree. Even our judiciary system operates in a similar manner. When it comes to the powerful upper caste, every force unites to bring justice to the victim, whereas, if the victim is from a marginalized community, we begin to find that the justice system is in tatters. Not only does it fail to bring justice, it further adds to the plight of the victim with its cruel proceedings. In the case of a Dalit victim, it might take months for an FIR to be lodged. The time frame within which the FIR is lodged is critical, it has the power to either make or break a case. This delayed lodging of the FIR gives a leeway to the accused, especially the upper caste, giving them an opportunity to tamper with the evidence. Whereas, an opposite reaction is seen if the accused is from a marginalized community, even when there is insufficient evidence to prove the accused guilty. Dalit Bahujan Adivasi communities are both under-protected and over-criminalised at the hands of the State and the justice system. I will cite this with two cases – Khairlanji, where the victim came from the marginalised Dalit community; and Ankush Maruti Shinde, where the accused came from the marginalised denotified tribal community.
The Khairlanji case of 2006 in Maharastra was a case of brutal atrocities committed against an entire Dalit family. They were raped and then butchered in the midst of the entire village, which was a bystander to this atrocity. Maharashtra saw a lot of revolt and protest after this case. The accused were from the Maratha samaj. The Dalit family had a conflict with a local Maratha family. In the dispute, casteist slurs were shouted at the Dalit family, for which they had lodged a complaint under the Atrocities Act. After registering the complaint, the police let the offenders out on a bail. Once free, the upper caste men set out to claim the cost for their bruised ego. They raped the women of the family, and murdered all the family members except one, again with the entire village witnessing the crime. The police failed to provide the family protection and further aided in the crime by not acting when the family requested protection. This case, after 15 years, finally reached the Supreme Court, which further refused to acknowledge the casteist nature of the crime, and noted that it was a case of "revenge killing". The case for rape got scrapped off, for there was not “enough” evidence for the same. The history of the case and the judgment pronounced by the Supreme Court clearly points at the denial in which the State exists. We fail to acknowledge the devastation and atrocities the Dalit family had been subjected to. This is the injustice done, not just to the Bhotmange family, but to the entire Dalit community.
Another case involves Ankush Maruti Shinde. The accused in this case belonged to the Pardhi (denotified tribal) community. There existed no proof and no author for the crime. And yet six of the accused, including a juvenile, were falsely implicated for the rape, thievery and murder of five people who belong to the upper caste. People from the marginalized community have insufficient knowledge and awareness about the legal system and its procedures, no resources, let alone any access to a legal representation. False evidence was relied upon to implicate them and the prosecution proved a crime which had never been committed. The death sentence was then confirmed at all the three levels of the judiciary. The falsely implicated Pardhis were then forced to endure solitary confinement and mental and physical torture for 16 years.
After all this, a lawyer finally sensed injustice and set out to investigate deeper into the matter. After going through the documentation, the lawyer found that there was not a single proof against the accused. Rather, he found that the FIR had recorded four offenders, according to what the witnesses had recounted; while six people were arrested and accused of the crime. These discrepancies went unnoticed by the lower court, the high court as well as the Supreme Court. The Supreme Court, after this was brought into notice, in a review petition, acknowledged that these six people had been falsely implicated. They observed that the people who had been falsely accused were from a nomadic community, but they did not take further note of the misuse of power and the historical injustice these communities had endured at the hands of police and the State. It is after 16 years the court directed the police to search for the real offenders. All this criminalization and torture was compensated with a sum total of 5 lakh rupees, which the judiciary deemed to be the value of their youth and their lives. The presumption of innocence which is promised under the law with the saying, “innocent until proven guilty” has been completely undermined in this case and several others, when it comes to the people from the marginalized community.
NS: The gendered nature of this casteist violence and how it has been perpetrated against women without being recognized is something I would like to reflect upon. The discourse around consent along with the #MeToo movement has been heavily discussed and deliberated upon in these past two years. It then becomes important to clarify which sexual and gendered violence are considered legitimate or illegitimate. There are four cases which need to be talked about. Firstly in the Khairlanji case, although the Atrocities Act was not revoked for the same, the two Dalit women, Priyanka and Surekha Bhotmange were subjected to sexual violence. Yet this instance of sexual violence was not mentioned anywhere in the FIR.
When Dalit, Bahujan and Adivasi women are sexually violated, the police, as well as the judiciary, sets out to invisibilise the case of sexual violence. Another example of this being the case of a 15-year-old Adivasi girl from Mathura was gang-raped by the police officers in the police station in 1980. The police officers were acquitted on the basis of the lack of evidence of violence in the form of marks or injury on the victim’s body. The judgment also claimed the Adivasi women to be “physically strong” and on this basis concluded that had such form of violence been pronounced on the Adivasi women she would have been able to physically resist and fend off the offender. This statement is drenched with Brahminical and patriarchal misogyny and proves the ignorance which pumps within our country’s judiciary. The use of the term “promiscuous” for the victim has also been significant. This implies that the woman has had many sexual encounters, concluding that the woman cannot be sexually violated. The idea of honour then comes into the discussion. The idea of honour does not uniformly apply to all women, for it has been solely reserved for upper-class women and to describe the violence that is perpetrated on an upper-caste woman’s body. The use of the word “promiscuous” is used for the Adivasi women, implying that they are sexually accessible. As has been sanctioned by the Brahmanical patriarchy, the upper caste men, as a matter of right, have free sexual access to the bodies of Bahujan, Adivasi and Dalit women. The court has legitimized this access through the usage of the term “promiscuous” for the women of the Adivasi and Dalit community, erasing the possibility of the sexual encounter to have been non-consensual. The consent of women has been implicitly assumed for the women is promiscuous.
The case of Bhanwari Devi is also very crucial, for this is the case which brought the laws against sexual harassment in the workplace and started the discourse of the #MeToo movement in our country. Bhanwari Devi, a Dalit woman, was working in rural Rajasthan to create awareness against child marriages. She had tried to stop a child marriage that was taking place in a Gurjar family and informed the police of the same. In retaliation, five upper-caste men committed gang-rape on her. The court acquitted those five men, saying that upper caste men would not ever sexually engage with lower caste women. The case of documentation comes in again. The bodies of women can then be seen as a sight for documenting violence, for there are certain marks of violence that are legitimate and certain that are deemed illegitimate. In Bhanwari Devi’s case, there was ample evidence and documentation, in terms of the marks of violence for she had tried to resist, in the gendered sense of the term, her perpetrators, and yet this was completely overlooked by the court, as the caste system does not “permit” this. This case was then taken up by NGOs, which led to the judgment against sexual harassment in the workplace, but it is important to note that Bhanwari Devi’s case is still pending at the Rajasthan High Court, while all the upper caste men have been acquitted. Caste has been treated as an ancillary factor in the discourse of consent. The Brahmanical patriarchal notion of consent has been furthered because of this.
DW: It is right to say that the caste narratives are completely erased from the legal system and our engagements with law. It is important to see that the Bhanwari Devi case starts with a Bahujan woman who hasn’t received justice as yet. This case then becomes an opportunity for upper-caste feminists to protect the upper caste women at their workplaces. Vishaka Guidelines are implemented to protect the “honour” of the upper caste women in their workplaces. These workplaces are formal workplaces – structured and defined, where only upper-caste women have the accessibility to gain employment. Their harassment is an important issue. Yet there are various groups of women, including the Bahujan, Adivasi and Dalit women who majorly work in the informal sector. They work in domestic spaces as domestic workers, as sanitation workers, cleaning public toilets, as rag pickers and in the field as landless labourers. They have been completely sidelined from the discourse around safe working spaces for women. The law tries to protect solely the formal workplace. The Local Complaints Committee which governs informal workplaces had never had enough resources and that further fails in addressing the concerns of sexual harassment of women from the marginalised community at the hands of upper-caste employers. When it comes to protecting the honour of the women from the marginalized communities, the judiciary and legislature choose to remain silent, accommodating merely the privileged who certainly have the power to make their voices heard.
NS: This is also similar to the critique of the #MeToo movement. When the List of Sexual Harassers in Academia came out, the majority of men who were accused were upper-caste men. With due process, it was called a “witch-hunt”. When it comes to upper-caste men who are the perpetrators of violence, the procedures suddenly become important and mandatory, whereas within the criminal justice system the men who are prosecuted for sexual violence, very evidently, belong to the marginalized background. We would want nothing short of the death penalty when the perpetrator is a Dalit man, but would even doubt the existence of the atrocity when an upper-caste man is the accused.
DW: Similarly, in the recent Hyderabad rape case (Priyanka Reddy case), everyone rejoiced at the police encounter of the accused men. When it comes to Dalit men we want vigilante justice, and rejoice in the same, but in cases like Bhanwari Devi’s where the accused are Thakur men, we would think twice about speaking against it, letting them free. This caste duality exists blatantly in the fabric of this country.
NS: This is also attributed to the way the policing functions. When the Mathura case happened, custodial violence was included in the Indian Penal Code as an important category. The custody and the police station as a sight perpetuating gendered and sexual violence was recognized. But the extent, to which this has been realised, in the case of Dalit Bahujan women, is yet to be seen. In 2017, Indramal Bai, who belonged to the Pardhi community of Bhopal, was facing constant harassment by these four policemen. They wanted to extort money from her and further threatened to apply false charges on her. This has been a matter of common recourse for the police since the criminality of the Pardhis has been assumed and could never be contended. Giving in to the pressure and troubled by her helplessness, Indramal Bai died by suicide. The police had actively abetted her suicide. While Indramal, the victim, succumbed to her injuries owing to the Brahmanical police violence, her criminal antecedents were called for. When the records were checked, she had been cleared of them all, proving her innocence. This is important to note the way such violence against Bahujan women is sanctioned by the court and the police. Their labour has been used to push forward the discourse around the harassment in the workplace and yet the abuse and struggles they are subjected to have remained unnoticed and unaddressed.
While I was researching the Atrocities Act in Chhattisgarh, I realised two things. Firstly, there is no inclination to implement the Act, which is where we see that the burden of proof is extremely high. That had any atrocities been committed against a victim; a victim has to prove that such a thing had been committed, especially with a casteist intention in mind. While I went through the cases of sexual violence, the issue of the caste was neglected, for we all operate within a casteist structure and the higher caste operates in the most hideous manner. Even if we assume that all of the perpetrators in the cases of sexual violence were unaware of the caste of the victim, the form of violence still becomes relevant. When a Dalit-Bahujan woman who had been a victim of the violence tries to access the court of law, her experience will be different from that of a victim from the upper caste. These experiences are marked by caste. But the judiciary, it almost seems, wants to see a caricaturized performance of caste discrimination or casteist violence. The casteist intention for the violence has to be explicitly mentioned by the perpetrator while performing the crime, for the judiciary to categorize the case as of Atrocities.
DW: Anti-discrimination and rights legislations like the Atrocities Act or Forest Rights Act were not served up to us on a plate. They are a by-product of long and enduring struggles of the Dalit Bahujan Adivasi movement. Not to forget, our everyday struggles and fights in the face of violence. When these laws are diluted, it implies that our existence is being further diminished. In cases of atrocities against Dalits, to say that the Atrocities Act doesn't apply as there is no caste angle to the case is an attempt to erase the everyday violence against the community and to dilute their struggles. Even when it comes to the Forest Rights Act, at every step its legal and protective mechanisms are being diluted and diminished by the law enforcement agencies and the State. The community will have to be acutely aware and vigilant towards how slowly but surely these protective mechanisms and laws are being trampled underfoot.
DISHA WADEKAR is an Engineer and has graduated in Law from University of Pune in 2015. She has worked as an Associate at the Chambers of Sr. Adv. Indira Jaising where she worked on constitutional matters including the Sabarimala case, Jarnail Singh case and the constitutional challenge to Citizenship Amendment Act. Disha coordinated a legal resource center set up under a project by London School of Economics. Her work involved representation in cases of custodial death and torture, atrocities against SC/STs, deaths due to manual scavenging. Disha was also the youngest lawyer representing victims before the Bhima Koregaon Judicial Inquiry Commission, set up to look into the caste violence witnessed in Maharashtra in 2018.
NIKITA SONAVANE graduated with a B.A. (Political Science) degree from St. Xavier’s College, Mumbai and an LL.B. degree from Government Law College, Mumbai. She holds an LL.M in Law and Development degree from Azim Premji University (APU), Bangalore. She has worked as a legal researcher and an advocate for three years. She is the co-founder of the Criminal Justice and Police Accountability Project (CPAProject) a Bhopal based litigation and research intervention focused on building accountability against criminalisation of marginalised communities by the Police and the criminal justice system and press for decarceration. She has
previously worked as a Research Associate with the Centre for Social Justice (CSJ), Ahmedabad, on issues of local governance, forest rights, and gender in the Adivasi region of Dang in Gujarat.