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Pushback against civil liberties -Satish Deshpande
-The Hindu

The sense of impunity that drives discrimination against Dalits is at the heart of recent demands for the dilution, or even repeal, of the Act for prevention of atrocities against SCs and STs

It is the sense of impunity nurtured by caste hierarchy that prepares the social ground for the “shockingly cruel and inhumane” crimes against Dalits called atrocities. It is this impunity that the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (henceforth PoAA) criminalises. And it is the desire to defend the same impunity that motivates recent demands for the dilution or even repeal of the PoAA. To examine the validity of these claims, we must first understand the very different relationships that caste has with the Constitution, society, and state.

Caste and the Constitution

The Constitution is a portrait of the nation as it would like to be rather than as it actually is. Therefore, it is obliged to regard aspirations as achievements, uncertain journeys as assured arrivals. Beginning with the Preamble, where it presumes that “we, the people” are indeed a unified and homogenous collectivity, the Constitution proceeds to treat hoped-for outcomes as though they were established facts. This is not a defect — the Constitution is required to reflect the republic in the best possible light, and is at its most majestic when doing so. However, this also means that the Constitution is unable to directly confront obstinate realities like caste that flout its fundamental tenets, because acknowledging caste amounts to confessing that the republic is more desire than reality.

So, when the Constitution is forced to deal with caste, it does so with an averted face, allowing it only an inferential, shadow-like presence. But it also manages to be obliquely eloquent about what it cannot face. For example, caste makes its first entry in Article 15 rather anonymously, as one among many sources of discrimination. But this is compensated by Sections 2(a) and 2(b) which prohibit discriminatory restriction of access to (respectively) “shops, public restaurants, hotels and places of public entertainment” and “wells, tanks, bathing ghats, roads and places of public resort…”. Why is it necessary to explicitly prohibit discrimination in access to both modern and traditional facilities already declared to be for the public? Or take Article 17, which abruptly announces that “Untouchability” is abolished and its practice in any form is forbidden. What does this capitalised word stand for and why must it be quarantined in quotes? The answer, of course, is caste, which is an absent presence in the Constitution, addressed only as an exceptional or special circumstance.

Discrimination as dominance

The PoAA, 1989, and its older sibling, the Protection of Civil Rights Act, 1955, are “special laws” located at the strategic sites where the Constitution’s default setting of caste-blind formal equality must be changed to address the reality of substantive inequality. All citizens are not equally at risk of being subjected to the acts specified in the sub-sections of Section 3(1) of the PoAA, such as being forced to “drink or eat any inedible or obnoxious substance” (i); have “excreta, waste matter, carcasses or any other obnoxious substance” dumped in their premises or neighbourhood (ii); or being paraded “naked or with painted face or body” (iii), and so on. If there exist specific groups of citizens who have repeatedly suffered such gross violations of the fundamental right to dignity, then surely the republic owes them the protection of special laws like the PoAA.

But why do such groups exist in the first place? They exist because of the social relations promoted by caste. The atrocities that invite interventions such as the PoAA are made possible by caste society’s ability to sustain specific types of relationships, or mutually oriented attitudes and conditions. On the one hand, Dalit castes are forcibly invested with an enduring social vulnerability vis-à-vis castes higher up in the hierarchy, especially those dominant within a region. On the other hand, dominant castes are allowed to acquire, and to eventually take for granted, a socially sanctioned sense of impunity with respect to Dalit castes. When the dominant caste feels it has little prospect of economic and social mobility, its self-esteem and identity become increasingly dependent on the unequal relationships it maintains with subordinated castes. In such situations, the Dalit-dominant caste relationship turns into a zero-sum game where any real or imagined improvement in the lives of Dalits is seen as a reduction in the social distance separating the two groups, thereby implying a decline in the status of the dominant castes.

The caste-state relationship

The state is simultaneously the child of law and society as well as the mediating link between the two. Because of its idealistic orientation, the Constitution — mother of all laws — is external to society and has a largely exhortatory relationship to it. The state depends on the Constitution for its legitimacy, but the Constitution also depends on the state for the actualisation of its ideals. Since it is regulated by politics which in turn is rooted in society, and since its personnel are themselves members of society who embody the prevalent social prejudices, the state is strongly influenced by society. But because it is institutionally bound to obey the Constitution, the state cannot always be guided by the dominant social prejudices of the day; rather, it must at least occasionally rise above these prejudices to perform its constitutional duty. In sum, the caste-state relationship is necessarily ambiguous because the state is itself a differentiated and plural (rather than homogenous or monolithic) entity, capable of acting in a wide variety of ways with respect to caste.

Returning now to the demands for restraining or removing the PoAA, we can begin to decipher what is happening. Both in Tamil Nadu and Maharashtra, the two States where it has been voiced, the demand is coming from political parties representing regionally dominant castes. Both States have seen the emergence (or re-emergence) of Dalit assertion following some upward mobility. This has enraged the dominant castes, leading them to argue that the PoAA is being “misused”. The misuse argument is so popular that it can be called a syndrome, or “a characteristic combination of opinions, emotions or behaviour”. It has been used against every special scheme or law intended to empower vulnerable groups, including reservations, laws against dowry, sexual harassment and rape, and even the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA). In each case, it is alleged that the “genuinely deserving” never benefit and that the “vast majority” of cases are fake.

Underdogs and predators

Since any law can be “misused”, it is not the potential for misuse but its actual occurrence and frequency that matter, and this needs to be established through credible evidence. No such evidence-based claims have been made as yet. On the contrary, reports from activist groups show that it is hard for ordinary Dalits to get cases registered, and extremely difficult to get them placed under the PoAA. But to be fair, the misuse argument is not always meant to be taken literally; it also acts as proxy for the more general perception that Dalits are no longer underdogs and may be turning into predators. This impression is confirmed when we recall that the Pattali Makkal Katchi leader, Dr. S. Ramadoss, reinforced his demand for dilution of the PoAA with the allegation that Dalit boys were luring non-Dalit girls by wearing “jeans, T-shirts and fancy sunglasses” (The Hindu, December 3, 2012). In Maharashtra, recent calls for reviewing the PoAA issued by the Shiv Sena and the Nationalist Congress Party have intensified after the rape-murder of July 13 in Kopardi (Ahmednagar district) in which the victim is dominant caste and the accused are Dalits.

While there is no reason to doubt that Dalits, like any other caste group, could become efficient oppressors if given the chance, the obvious question is if they are in fact getting the chance. Going by the nationwide evidence on the frequency of atrocities on Dalits, the shoe still seems to be firmly on the other foot. Ahmednagar district alone has witnessed three atrocities on Dalits in the past three years (Sonai, Kharda and Javkheda). Meanwhile, as the first anniversary of the Dadri lynching approaches, let us also spare a thought for vulnerable groups who do not have, and will probably never have, the constitutional protection of special laws.

Satish Deshpande teaches sociology at Delhi University.