By Jaya Lakshmi and Arvind A S
Trigger warning: Mentions of rape, caste-based discrimination
The recent rape and murder of a 19-year-old Dalit woman who was forcibly cremated by the police in Uttar Pradesh, an incident which was soon followed by another rape and murder of a 22-year old Dalit woman in Balrampur, Uttar Pradesh, has shocked the conscience of the nation and once again brought to light the existing structural violence against the Dalits.
The violence, insensitivity and apparent impunity that was witnessed in Hathras case highlight, yet again, the deeply rooted oppressive caste hierarchy that seemingly legitimizes such acts of violence in our society.
Caste in India has historically regulated conduct through “exclusion, segregation, and atrocity.”
India’s constitutional framework has attempted to address these injustices by prohibiting discrimination on the grounds of caste, providing equality of opportunity through reservations in public employment and education, and abolishing the practice of untouchability. In addition to the constitution, there are also special legislations such as The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, The Protection of Civil Rights Act, 1955, The Prohibition of Employment as Manual scavengers and their Rehabilitation Act, 2013, and Devadasis Prohibition laws. Together, these laws have sought to combat caste-based discrimination, social, political, and economic inequality, and caste-based atrocities.
This article seeks to analyse the pitfalls in the implementation of these laws with a special focus on atrocities faced by Dalit women. This failure is not simply one of institutional inability, but a conscious product of the caste system in which the state is complicit.
The Complicity Of The State In Atrocities On Dalit Women
Among Indian women, Dalits, Adivasis, and backwards-caste women are the most oppressed. The recently released National Crimes Records Bureau data for 2019 shows that almost 10 Dalit women and girls are raped every day across the country. There were 3486 reported rape cases against Dalit women and girls registered with the police in 2019, which is a significant increase from 2936 cases in 2018.
However, even these numbers are considered to be gross underestimates, as the majority of the caste-based cases of sexual violence are underreported. The oppression that Dalits and other backward class women face aggravated forms of violence as they occupy a space at the intersection of caste, class, and gender.
As Susan Brownmiller has rightly pointed out, “Rape is not a crime of irrational, impulsive, uncontrollable lust, but is a deliberate, hostile, violent act of degradation and possession on the part of a would-be conqueror, designed to intimidate and inspire fear.” Every time Dalits have challenged the hierarchical structures of caste by indulging in acts of resistance, they have been subjugated and oppressed through various forms of violence, sexual violence being one of them.
The dignity of Dalit women is violated to shame the whole community. These are not isolated incidents of violence but a form of structural oppression against Dalits by the upper caste.
Every time there has been a caste atrocity against women in the form of rape and/or sexual violence, the prevailing caste hierarchies have been clearly visible. For instance, in February 2020, a local Dalit leader organised a programme called BhimKatha in Mangta village, Uttar Pradesh, which angered the upper caste men. They saw it as a threat to the existing caste structure. In response, on February 12, 2020, several Dalit families were attacked with lathis and hammers and several women and children were injured.
Similarly, in another incident, a Dalit woman who had gone to relieve herself in the morning was attacked and raped by an upper-caste man. He abused her by calling her “Chamaran” and said, “If I don’t stop you people from using the name Bhim, I am not a Thakur.”
In 2015, a Dalit man eloped with a married woman from the Jat community, which is a forward caste. This angered the Jats in that village and The Khap panchayat ordered the Dalit man’s sisters’ to be raped and paraded naked as revenge for the actions of their brother. These series of incidents of violence demonstrate how commonplace such occurrences are in our society, and hence there is an impending necessity for greater scrutiny on the part of the state.
Institutionalisation Of Caste-Based Violence
The Judiciary has often failed to observe the required degree of sensitivity that ought to be exercised in cases wherein caste and gender-based violence intersect. Such an attitude is reflected in several decisions of courts. For example, in the case of Pappu Khan v. the State of Rajasthan, a truck driver raped one of four girls he had offered a ride to from the local bus stand. He was charged under S. 376 of IPC and S. 3(2)(v) of the Prevention of Atrocities Act. The Rajasthan High Court found him guilty of rape but acquitted him under the atrocities act.
The reasoning that the court provided was that there was no substantial evidence to prove that the accused had raped the girl because she was from a Tribal community. There have been numerous similar cases.
The Khairlanji massacre from 2006 perhaps best illustrates the underlying themes which are common to these cases. In this case, four members of a Dalit family were abused, attacked, paraded naked, gang-raped, and murdered in public. The sons were asked to rape their mother and sisters, and when they refused, they were mutilated. The women were then gang-raped and objects were shoved into their private parts. However, no FIR was registered.
The attitude of the police was very casual and they were unwilling to even start the investigation. It was only after a month-long protest by the Dalit activists that the police finally took action. Pieces of evidence were fudged and misinformation was spread. The character of the survivor was maligned to justify the murder. These incidents establish how caste-based violence has been used as a retort against Dalits to protect and promote caste hierarchy.
The verdict in their case was announced by the Bhandara Court in 2008. The court held eight people guilty of murder and acquitted three. Six people were awarded the death sentence while the other two were given life imprisonment. The ruling was appealed to the Nagpur division bench of Bombay High Court. The court commuted the sentence of the six convicted persons from the death penalty to twenty-five-years imprisonment. It refused to invoke the SC/ST Act and held that the murder was based on revenge and that caste was not at work here.
Even from this small sample of cases, it is evident that institutional denial and invisibilization of the question of caste is prevalent.
Failures Of The Judiciary
The Khairlanji massacre is a textbook example of an atrocity. The fact that the court did not invoke the SC/ST Act in this case only further solidifies the argument that the judiciary is culpable for rendering the Act redundant and overlooking caste-based violence.
The failures of the judiciary are found in the law enforcement and the bureaucracy as well. Bhanwari Devi is a Dalit woman who had worked as a saathin (friend) for the state government’s Women’s Development Programme (WDP). Her job involved going door-to-door in the village, campaigning against social ills such as child marriage. As a part of her work, she stopped a child marriage which angered the members of the Gujar Caste. As a result, Bhanwari Devi and her husband were beaten by the upper caste men and she was gang-raped.
The accused belong to the affluent and dominant caste group in the village while Bhanwari Devi and her husband belong to the low-caste potter community, Kumhar. She went to the police station to register a complaint against the accused. The police upon hearing her case, accused her of lying. Her attackers denied rape and said that there had only been a quarrel. The police did not take her complaint seriously and botched up the investigation. Her medical test was conducted 52 hours after the incident even though the law prescribes that it must be done within 24 hours. Furthermore, the bruises on her body were not recorded and her complaints of physical discomfort were ignored.
Relying on this shoddy investigation, Rajasthan High Court held that the act of gang rape was committed only as revenge for attempting to stop the child marriage and not because of the victims’ caste. The Court did not even invoke the provisions of the SC/ST Act. Over the course of the trial, the accused were acquitted of rape and were instead found guilty of lesser offences like assault and conspiracy. They were all sentenced to just nine months of imprisonment.
The reasons given by the judge while acquitting the accused on the charge of rape were very insensitive and bizarre. He made observations such as: “The village head cannot rape”, “Men of different castes cannot participate in gang rape”, “Elder men of 60-70 years cannot rape”, “A member of the higher caste cannot rape a lower caste women because of reasons of purity”, and “Bhanwari Devi’s husband couldn’t have quietly watched his wife being gang-raped.”
In a similar case, Lalasa Devi was grabbed by her neck and the accused snarled “chamar”, the caste to which she belonged. “What can you do to me?”, he said, following which he threw Lalasa Devi on to the ground and raped her. She reported that the police authorities had treated her poorly when she tried to register a complaint against the accused. The police officer who had gone to her house insinuated that she might have had an illicit relationship with the accused. When her husband, Ram Prasad, went to the local police station to file a fresh complaint alleging rape, only a complaint of sexual harassment was registered. Later, the investigating officer offered Rs. 2,00,000, to the victims to have the case dropped, but they refused.
Such incidents further serve to highlight the connivance between the state organs and the powerful upper caste non-state actors, and their willingness to turn a blind eye towards such caste-based violence.
The Constitution of India is based on the principles of Justice, Equality, Liberty, Fraternity, and Individual Dignity. It is unfortunate that even after so many years of the Constitution being in force, these fundamental principles have not translated into social reality. Caste and patriarchy, both of which are an antithesis to the Constitution, continue to prevail. The state institutions that have an obligation to protect the oppressed and the vulnerable sections of the society have not only failed but on the contrary, have joined hands with the oppressor.
When the accused demeaned Lalasa Devi by calling her by her caste name, and taunted her by asking her what can she do to him in response, he was not only exercising the domination and power associated with his caste but also illustrating the confidence he had in the state upholding the caste order.
Intersectional discrimination needs to be comprehensively understood in order to address gender inequality. When one thinks of gender-based violence, the experience of Dalit women is invisibilised and even normalised. This is due to their status of being at the bottom of caste and class hierarchy. In a society that is so entrenched in caste, we can only address the crimes against disadvantaged persons by taking into account the structures that enable them otherwise history will repeat itself.
Jayalakshmi is a practising lawyer at the Karnataka High court and Executive Director, Samam, Bengaluru. Arvind A S is a lawyer and researcher at Samam, Bengaluru.