With [few] or no amendments to the Indian Penal Code, 1870, the Criminal Procedure Code, 1930, and the Indian Evidence Act, 1872, the same laws that were used by the British to keep the Indians down are now being used by the upper castes to keep the Dalits down.
— Dalit attorney225
It is generally known that false criminal cases are sometimes engineered merely for the sake of making arrests to humiliate and embarrass some specified enemies of the complainant, in league with the police for corrupt reasons.
— National Police Commission, Government of India226
In violation of the right to equal protection before the law, as guaranteed by Article 14 of the constitution and Article 26 of the International Covenant on Civil and Political Rights, local police routinely abuse vaguely worded provisions of the Indian Penal Code, the Criminal Procedure Code, and various preventive detention statutes to thwart attempts by Dalits to demand their legal rights. The arbitrary detention of Dalits and treatment of Dalit men and women in custody are also clear violations of laws governing police conduct.
State agents have acted directly and forcefully against those attempting to claim their rights. Dalit activists throughout the country face charges as “terrorists,” “threats to national security,” and “habitual offenders.” Many have to spend much of their income on lawyers’ fees or anticipatory bail. Dalit activists are frequently charged under the National Security Act, 1980, the Indian Explosives Act, 1884, and even the Terrorism and Anti-Disruptive Activities Act (TADA).227 The most common charges under the Indian Penal Code includesections 147 and 148 on rioting and rioting with a deadly weapon; Section 341 for wrongful restraint; sections 323 and 324 for voluntarily causing hurt; sections 302 and 307 for murder and attempted murder; and Section 427 for mischief. Provisions of the Criminal Procedure Code are also used to detain Dalit activists and deter them from organizing Dalit community members.
The criminalization of social activism in India is a pattern that has been previously documented by Human Rights Watch.228 Dalits are easy targets for the police. With little knowledge of their rights, limited access to attorneys, and no money for hearings or bail, they often languish in prison even for minor offenses. This section briefly outlines the rights of the accused upon arrest and the treatment of Dalit activists in the states of Tamil Nadu, Maharashtra, Gujarat and Karnataka.
Rights of the Accused
When an accused is arrested, he or she has the right to: be informed of the reasons for the arrest;229 see the warrant if arrested under a warrant;230 consult a lawyer of his or her choice;231 appear before the nearest magistrate within twenty-four hours;232 and be told whether he or she is entitled to be released on bail.233
Section 163 of the Criminal Procedure Code prohibits any officer from making any threat or promise for the purpose of obtaining a statement from a witness or an accused. Causing harm to obtain a confession or to obtain information regarding an offense is also punishable by up to ten years imprisonment under Section 330 of the Indian Penal Code. Police torture of an accused is a violation of the detainee’s fundamental rights to life and liberty guaranteed under articles 20 and 21 of the constitution.234 Nevertheless, police torture persists. Several Supreme Court cases have also determined that victims of police torture are entitled to compensation.235
D. K. Basu v. State of West Bengal
In December 1996 the Supreme Court established detailed instructions for proper police procedure to be followed by the police in cases of arrest or detention. These requirements, as articulated in D. K. Basu v. State of West Bengal, include:
· Police personnel carrying out arrests and handling the interrogation of an arrestee must wear accurate, visible and clear identification and name tags giving their designations. The particulars of all personnel who handle interrogations must be recorded in a register.
· The police officer carrying out the arrest must prepare a memo of arrest at the time of arrest; this memo must be attested by a witness who may be either a member of the family of the arrestee or a responsible person of the locality where the arrest has been made.
· The person arrested or detained shall be entitled to have a friend, relative or other person known to him, or having an interest in his welfare, informed as soon as practicable.
· The arrestee should, when he or she so requests, be medically examined at the time of arrest, and major injuries, if any are present on his or her body, must be recorded in a memo. The inspection memo should besigned by both the arrestee and by the police officer concerned, and a copy should be given to the arrestee.
· The arrested person should undergo a medical examination by a trained doctor every forty-eight hours of his or her detention in custody.
· The arrestee should be permitted to meet his or her lawyer during interrogation.236
The Supreme Court has given weight to the enforceability of these instructions—which are in line with international guidelines for the treatment of persons under arrest or detention237—by adding that those in violation of these directions would be liable for contempt.238 As illustrated in chapters IV and V on the pattern of abuse in rural Bihar and Tamil Nadu, respectively, police officers and other state agents have generally disregarded proper procedure in arresting Dalits, subjecting them to physical abuse and torture. The arrest of Dalit activists on falsified charges has also been a common occurrence.
Human Rights Watch spoke to many Dalit lawyers and NGOs with legal aid divisions in Tamil Nadu, Andhra Pradesh, Karnataka, and Maharashtra. Many claimed that defending Dalits against false charges constituted most of their workload. Prominent activist Henry Thiagaraj of the Dalit Liberation Education Trust explained:
Most of [our] legal people go to court to get anticipatory bail for false arrests of Dalits... The police will file the FIR [first information report] in such a way to say that the Dalit went to pick a fight. They take complaints only from upper-caste people. Then they say that the Dalits created the conflict, that they are contributing to communal violence. Then they ask the magistrate to pass an order that they should stay fifty kilometersaway from the village. The women and children who remain behind end up starving and living in fear.239
A team of Dalit attorneys in southern Tamil Nadu who represent Dalits in the Rajapalayam and Sriviliputhur districts added the following on the role of corruption:
If there is a fight between Dalits and upper castes in which a Dalit is attacked or property is damaged, and if he chooses to go to the police station, the police officer, usually an upper-caste fellow, will refuse to do an FIR, saying that his [the Dalit’s] version is false. Conversely, the Dalit gets charged by the people he is accusing. In all police stations, all work can only be done with the aid of a lot of money. Even for FIRs or arresting an accused, bribes are needed. Dalit people are penniless, and the police are also influenced by caste.240
False Arrests During the Tamil Nadu Southern District Clashes
Apart from specific offenses, the police also customarily arrest large numbers of people under preventive arrest laws. This practice may be linked to caste tensions in various ways. For example, according to the Dalit attorneys interviewed, in Tamil Nadu, Dalits are often charged under the Tamil Nadu Public Properties (Prevention of) Destruction Act, 1992. During a June 1997 police raid on Desikapuram village, Virudhunagar district, dozens of Dalit men and women were arrested and charged under the Public Properties Act for allegedly setting fire to a Thevar van. Several eyewitnesses reported, however, that the police themselves had set the van on fire.241 Charges under the Public Properties Act are non-bailable; those arrested under the act spend a minimum of one month in prison. The police also charge them with non-bailable Indian Penal Code offenses. With the more minor charges, “they have to be released within seven to ten days. Butin cases of murder or charges under the Public Properties Act, it could be three months or more.”242
In another case, police spread an even wider net to criminalize those caste Hindus that did not toe the police line. After a caste Hindu attack on the Dalit colony of Veludavur, Villapuram district, in January 1998, police arrested twenty-three people under the Atrocities Act. The arrests, activists claimed, were meant to punish those caste Hindus who did not endorse the attack: “They arrested high-caste people who weren’t involved, to punish non-Dalits who did not support the attacks.”243 Affected villagers named fifteen aggressors in the FIR, but only three of the fifteen named were arrested. The rest of the detainees, those not named in the FIR, could be arrested because of the police practice of adding “and others” to the ends of the names of the accused. “Then they can arrest anyone they want,” one activist said, “usually, this is how it works.”244 On the basis of the FIR—which concerned a caste Hindu attack—the police went on to arrest four Dalits who did not belong to the village, charging them with attempted murder under Section 307 of the Indian Penal Code and under the Public Properties Act for allegedly carrying petrol pumps. Two of the detainees were members of the Dalit Panthers of India.245
Tirumavalavan is the head of the Dalit Panthers of India (DPI) for Tamil Nadu. DPI is a nonviolent awareness-raising and organizing movement concentrating primarily on women’s rights and land issues and claims. Since the mid-1990s, DPI has helped to promote a new Dalit political leadership in Tamil Nadu, unaligned to mainstream political parties. Its platform includes demands for land to Dalits for living and for cultivation, for the inclusion of Dalits in government land auctions, and for implementation of the Atrocities Act. Tirumavalavan has been involved in many protests against government inaction in Dalit murder cases, such as the Mellavalavu murders described in Chapter V. He told Human Rights Watch about the following incident.
In early October 1997 an armed group of caste Hindus entered the village of Nantiswaramangalam. Six Dalit youths were taken back to the assailants’ village, tied to a tree, and beaten. The attack was reportedly triggered by a Dalit resident’s attempt to draw water from the village water pond. When the police arrived, they released the youths but did not register a case under the AtrocitiesAct. After DPI’s involvement, the police booked a case under Section 3(1)(10) for name-calling, the least serious offense under the Atrocities Act.246 The district administration suggested that the police initiate “peace talks” between the communities, but no action was taken. According to Tirumavalavan, “The government usually tries to make a compromise in these cases but does not take action against caste Hindu people.”247 Violence continued in the village for more than a week and included further beatings, arson, and physical and sexual assaults on women. A DPI member who attempted to intervene and call for peace talks was severely beaten by caste Hindus and admitted to the hospital for head injuries after being struck with a sickle. Dalit residents were soon forced to leave their village and sought refuge in the neighboring village of Sholadurum. More than a month later the district administration had done nothing to get them back to their homes.248
Increasing tensions in the area led to a staged roadblock in the first week of November 1997. Buses were burned, for which thirty people, all Dalits, were arrested. Of those thirty, five were arrested under the National Security Act, 1980, and two were below fifteen years of age. Tirumavalavan claimed that they were not involved in the burning of buses. He explained that the arrests were examples of a typical police pattern:
They were picked up in their house, and all thirty are still in jail. The two underage people are no longer being charged under the National Security Act but they are still in jail because of pressure from the community. But you cannot arrest below fifteen years of age. The police gave their age as nineteen, but we proved that they were under fifteen. The police have to catch someone so they indiscriminately arrest. A lot of others burn buses and destroy property but only Dalits get arrested. When there is any public law and order problem they come to Dalit homes.249
Tirumavalavan himself has been arrested numerous times. He told Human Rights Watch that he and other members of his movement are targeted by the police for organizing Dalits to claim their rights:
We are very pessimistic because the government is dominated by the high castes. They immobilize people. I am often arrested under Indian Penal Code sections 153(a) [for promoting enmity between different groups] and 120(b) [for criminal conspiracy], and also under the Sedition Act and the National Security Act. When I speak in a public meeting they disperse the meeting. In late 1992 I was abducted by the police in a jeep. They said the superintendent of police wanted to meet me. Another accusation is that we are called extremist Naxalite groups. We are a powerful group, so we are automatically linked with Naxalites. We are not underground. We boycott elections. We do not advocate violence. We just organize Dalits to emancipate their slavery.250
The Sedition Act, embodied under Indian Penal Code Section 124A, reads as follows:
Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added....251
In 1962 the Supreme Court held that Section 124A—though susceptible to abuse by state agents—was not in violation of the constitutional right to free speech found under Article 19(1)(a).252 The court added that it is only when the words have “the pernicious tendency or intention of creating public disorder ordisturbance of law and order that the law steps in.”253 However, as with the police’s propensity to abuse vaguely worded provisions of the Indian Penal Code and Criminal Procedure Code, the law has been used to prohibit peaceful meetings and protests, in clear violation of Article 19 of the constitution which guarantees freedom of speech and a right to peaceful assembly.
According to a Dalit activist working in Tirunelveli and Tuticorin districts, Tamil Nadu, many “young, educated youths” were also detained under the Tamil Nadu Goondas Act during the southern district clashes in 1997.254 A goonda is defined as a habitual criminal, usually associated with a criminal gang.
Human Rights Watch interviews with activists in Maharashtra, Gujarat, and Tamil Nadu revealed that the National Security Act, 1980 is also commonly used against Dalit protesters and organizers. One activist exclaimed, “Organizing untouchables is a threat to national security?”255 The act allows the central and state governments to make orders to detain a person with a view to “preventing him from acting in any matter prejudicial to the defence of India, the relations of India with foreign powers, or the security of India,” or with a view to “preventing him from acting in any manner prejudicial to the security of the State Government, or from acting in any manner prejudicial to the maintenance of public order...”.0 Upon obtaining confirmation from an advisory board under Section 12 of the act, a person may be detained for up to twelve months.1
Maharashtra Case Studies
Human Rights Watch spoke with several activists working to train Dalits in the registration of Atrocities Act cases in the “atrocity-prone” Marathwada region of eastern Maharashtra. Several were suffering a legal backlash as a result of their activism.
Shankar Pawar works among Dalits in the Andhra Pradesh-Karnataka-Maharashtra border region. In 1993 he was detained under Criminal Procedure Code Section 151 for fifteen days for organizing Dalits to demand their due shareof auctioned temple lands.2 Under Section 151, “a police officer knowing of a design to commit any cognizable offence may arrest, without orders from the Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot otherwise be prevented.” Although sub-section (2) of Section 151 does not allow for the detention to exceed twenty-four hours, in the state of Maharashtra the section has been amended to allow for detention up to fifteen days. After his detention, Pawar was jailed for fifty-two days and concurrently tried under the National Security Act. Only after his case was pleaded before three High Court judges was he released.3
Datta Khandagale is a social worker in Chorakali village, Usmanabad district, Maharashtra. He works with fifty Dalit families who are segregated from the majority caste Hindus in the village. In September 1992, Khandagale asked the police to register an Atrocities Act case against upper castes who had instituted a social boycott against Dalit villagers. The boycott was in retaliation for the Dalits’ attempt to enter a village temple for prayer. As they entered, the upper-caste villagers began to throw stones and, as a result, one woman’s head was cut open. When Khandagale approached the police with a complaint, the police responded, “You’re the one making trouble in the village, increasing tensions between communities,” and then proceeded to file a Criminal Procedure Code Section 107 case against him. Section 107 allows the police to preventively detain any person “likely to commit a breach of the peace of disturb the public tranquility.” Nine Dalits were arrested, including Khandagale. Because they could not pay the bond, they remained in jail for five days.4
The harassment did not end with the police. After his release, Khandagale was approached by local politicians in his district. He was told, “If you don’t [drop] the case [Atrocities Act case] it will be bad for you.” Other politicians followed suit: “They said you should reject the case. We said, ‘No, we can’t.’ Then they threatened the other eight and said, ‘If you don’t leave the case alone, we will kill you.’” The politicians were accompanied by ten to fifteen police during their visit. The other eight arrestees eventually dropped the case.
Khandagale was later summoned by the Superintendent of Police (SP) of Usmanabad district. When he arrived he found over twenty upper-caste villagers in the SP’s office.
In front of them he scolded me and said, “Why are you causing trouble and agitating the Dalits?” “You fool,” he said, “Why are you creating trouble between the two groups?” I asked him not to swear at me and said, “You are threatening the people that need your protection, and you are insulting me in front of them [upper-caste villagers].” Then he kicked me out of the office. I came home and wrote down everything that happened and sent him the letter. I asked, “If you talk against me and pressure me in front of the upper caste then what’s to keep them from killing me?”5
He also sent the letter to the Ministry of Home Affairs. The SP eventually apologized for his behavior, but the upper castes continued with their threats. Only after appeals to the chief minister was Khandagale granted police protection, which continued for three years. Police presence also put an end to the upper-caste social boycott in the village, and the village temple is now open to all Dalits. Khandagale is the only one who goes in, “[t]he others are too afraid.”6 The woman who sustained head injuries from the 1992 stone throwing was ultimately persuaded to drop all charges. In 1994, the water supply to the temple was disrupted. The upper-caste villagers attributed the problem to the presence of “untouchables” in the temple. At the time of the Human Rights Watch interview in January 1998, Khandagale continued to be harassed by the police and threatened by upper-caste villagers for his organizing activities.
Vivek Pandit of the NGO Samarthan, who has provided legal literacy training to these and other Maharashtra activists, had seventeen charges pending against him as of December 1998. At one point, he had to appeal to the High Court to get back his passport, it had been impounded by the state government to keep him from leaving the country.7 In an interview with Human Rights Watch, Pandit claimed that the district administration and the police were using laws to“torture and stamp out Dalit leaders.”8 Pandit has been actively involved in the case of a man named Digambar who, at the time of his interview with Human Rights Watch, was fighting an externment (banishment) order from his village “for creating a nuisance and disrupting law and order.” Upon receiving his externment notice, Digambar sent a thirteen-point response to district officials. Portions of the response, translated from Marathi, are provided below:
I am a scheduled-caste youth working for my people. I am organizing scheduled castes as per fundamental rights guaranteed under the constitution, including the right to freedom of association. Because of my work, some casteist elements are bound to get angry. I have never committed any crimes of a serious nature. You are a representative of the state and have a duty to protect scheduled castes under the constitution. Instead, how can you issue [a notice against] me? The government has to abide by law and not get pressurized by the upper caste. Officers are violating fundamental rights, and now you are too. My duty is to uphold these rights. I am going to mobilize and organize against offenses. If the cases I have registered are false, where is the proof?.. Kindly withdraw the notice.9
At the time of the interview, Digambar was awaiting the district administration’s response.
Other Case Studies
During our investigations, Human Rights Watch came across several other cases of police harassment of NGO activists, ranging from periodic police visits, to arrests and charges of aiding and abetting in various crimes or interfering in police investigations.
V. T. Rajshekar is the editor of Dalit Voice, India’s most widely circulated Dalit journal. Prior to running the journal, he was a journalist with Indian Express for twenty-five years. Rajshekar has often come under attack for his writings. In1986 his passport was impounded because of “anti-Hinduism writings outside of India.” The same year, he was arrested in Bangalore under TADA:
The police came from Chandigarh and arrested me and took me to the Chandigarh jail for an editorial I wrote in Dalit Voice. Another writer who republished the editorial was also arrested. Then they came to me. After fifteen days, after much Dalit agitation, I was released with an apology.10
In addition to TADA, Rajshekar has also been arrested under the Sedition Act and under the Indian Penal Code for creating disaffection between communities—all for his writings. He has also endured attempts on his life and has been placed on the Home Ministry’s “dangerous persons list.”11
Gilbert Rodrigo, a member of the Tamil Nadu-based NGO Legal Resources for Social Action told Human Rights Watch that he was “visited” by members of the police special branch each year. They inquire about the sources of his organization’s funding and how the money is spent.12 Nicholas, a member of the Integrated Rural Development Society, who organizes Dalits in Tamil Nadu to register cases under the Atrocities Act, has been charged three times under Section 107 of the Indian Penal Code for aiding and abetting Dalits in their alleged crimes. According to Nicholas, the use of Section 107 “is an attempt by the state to divert us from our work. You have to go very far for the hearings. They make you run around. It is mental torture.”13 Martin Macwan and his team of 180 social workers provide legal aid and training to Dalits in Gujarat. His organization, Navsarjan, has also led a state-wide campaign to abolish the practice of manual scavenging. Many of his team members have been charged under the Criminal Procedure Code for disturbing police investigations.14
236 D. K. Basu v. State of West Bengal (Writ Petition CRL No. 539 of 1986).
237 See, for example, United Nations Basic Principles for the Treatment of Prisoners, Adopted and Proclaimed by General Assembly resolution 45/111 of 14 December 1990.
238 National Human Rights Commission, Annual Report 1996-1997 (New Delhi: Government of India, 1998), pp. 20-21.
239 Human Rights Watch interview with Henry Thiagaraj, Madras, February 14, 1998.
240 Human Rights Watch interview with Dalit attorneys, Madurai, Tamil Nadu, February 16, 1998.
241 For more on the police raid, see Chapter V.
242 Human Rights Watch interview with Dalit attorneys, Madurai, Tamil Nadu, February 16, 1998.
243 Human Rights Watch interview with Nicholas of Integrated Rural Development Society, and other activists, Madras, February 14, 1998.
246 For more on non-registration of Atrocities Act cases and the use of Section 3(1)(10), see Chapter X.
247 Human Rights Watch interview with Tirumavalavan, Madras, February 13, 1998.
249 Ibid. The key facts of this case have been investigated and independently verified by People’s Watch whose findings corroborate our own.
250 Ibid. For more on Naxalites, see chapters III and IV.
251 Indian Penal Code, Sec. 124A.
252 Kedar Nath, AIR 1962 SC 955.
253 Indian Penal Code, Sec. 124A, Comments.
254 Human Rights Watch interview with Bharathan, Programme Coordinator, Navjeevan Trust, Madurai district, Tamil Nadu, February 17, 1998. Navjeevan Trust is an NGO that campaigns against child labor and trains local panchayat leaders.
255 Human Rights Watch interview with Vivek Pandit, Usgaon, Maharashtra, January 29, 1998.
0 The National Security Act, 1980, Sec. 3.
2 Human Rights Watch interview with Shankar Pawar, Usgaon, Maharashtra, January 29, 1998.
3 Human Rights Watch interview with Vivek Pandit, Samarthan, Usgaon, Maharashtra, January 29, 1998.
4 Human Rights Watch interview with Datta Khandagale, Usgaon, Maharashtra, January 29, 1998.
7 Human Rights Watch interview with Vivek Pandit, Bombay, February 4, 1998.
8 Human Rights Watch interview with Vivek Pandit, Usgaon, Maharashtra, January 29, 1998.
9 Human Rights Watch interview with Digambar, Usgaon, Maharashtra, January 29, 1998; Human Rights Watch interview with Vivek Pandit, Bombay, February 4, 1998.
10 Human Rights Watch interview with V. T. Rajshekar, Bangalore, February 7, 1998.
12 Human Rights Watch interview with Gilbert Rodrigo, Madras, February 14, 1998.
13 Human Rights Watch interview with Nicholas, Madras, February 13, 1998.
14 Human Rights Watch interview with Martin Macwan, Ahmedabad, July 23, 1998.