Justice H Suresh, Bombay High Court (retired)
Atrocities against Dalits [so-called ‘untouchables’] are on the increase. Recently, five Dalits in Haryana were lynched over the alleged killing of a cow, without any strong reaction from the upper-castes. In Satharasankottai village of Shivganga District, Tamil Nadu, a Dalit was brutally beaten by caste Hindus because he questioned the elite in the village council. He had objected to them importing machines to de-silt local water, an activity that had normally been undertaken by farm labourers left unemployed as a result. Not one member of the upper-castes came to his rescue. In another village of Tamil Nadu, Sankaralingpuram, Dalits were attacked after one of them ran for election to the local council against a caste Hindu. It is a known fact that all over the country Dalits have been denied positions on, and often the right to contest for, the village councils. In this case, the police sided with their assailants.
Untouchability was abolished by the Constitution of India fifty years ago. Stringent laws were introduced to prevent atrocities and protect Dalits. But these things have remained on paper only; the reality is otherwise. The mindset has not changed. It is now necessary to move past expectations that government policy and legal instruments will be able to address this crisis. One avenue towards the advancement of Dalit rights is the use of public hearings, ‘jan sunvai’, on violations. If communities take the initiative and people establish their own tribunals to hear of atrocities and try the offenders, they are likely to advance their cause significantly.
Dalit rights and the law
When the Constitution was drafted, it took into account the Universal Declaration of Human Rights, with its recognition of the inherent dignity and equal and inalienable rights of all persons.
This is the foundation of global freedom, justice and peace. Article 1 of the Universal Declaration affirms that, “All human beings are born free and equal in dignity and rights.” This affirmation is reiterated in the preamble to the Constitution of India, which goes on to declare that the Republic is constituted
To secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation.
In the Chapter on Fundamental Rights in the Constitution, the right to equality is expressly included, under article 14.
However when it comes to untouchability, it only gets expressed in terms of wishful thinking: article 17 states that it is abolished and its practice in any form is forbidden. Just like a statement that poverty shall be abo1ished, the article 17 provision is a mere pious hope. On the other hand, a right not to be poor (more recently expressed as a right to develop) would at least have met with greater assurance that the state’s obligations would be fulfilled. For its part, the Constitution fails to confer on Dalits a more positive right: the right not to be treated as an untouchable, which should have been included as an absolute right, without any derogation whatsoever.
Article 38 of the Constitution instructs the state to
Strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
This is akin to what international humanitarian law says. For instance, article 2.1 of the International Covenant on Civil and Political Rights urges states “to achieve progressively the full realisation of the rights recognised”. How much during the last 50 years did the state in India “strive” for the “full realisation” of article 17 in the Constitution? Had a positive obligation been placed on the state it might have been called to answer for its failure.
Apart from the Constitution, statutes and police, the government has various commissions at its disposal. These include the National Human Rights Commission and its state-level equivalents, the Scheduled Castes and Scheduled Tribes Commission and commissions of inquiry appointed from time to time, under the Commissions of Inquiry Act. Reports and recommendations by the Scheduled Caste and Scheduled Tribes Commission are all placed before the parliament, where they remain pending for years, without any discussion. The National Human Rights Commission and state human rights commissions, though constituted under the provisions of the Protection of Human Rights Act, do not guarantee any effective remedy for human rights violations. Most of their members are retired judges of the Supreme Court or high courts and the remaining members come from the Home Ministry or police. For them it is just a job, and one that entitles them to retire from active government service. Their power is also limited to the making of recommendations to the government, which it is free to accept or reject. As for the commissions of inquiry, governments have throughout used them as a shield against public criticism. Faced with reports of serious human rights violations, governments promptly announce an inquiry by a sitting or retired judge. This immediately silences the press, public and affected persons. It also stops any inquiry by the National Human Rights Commission, because under the Act, if any government inquiry is announced, the Commission will not inquire into that incident. It also stops further inquiry by the police or other investigating agencies. Having silenced all concerned, the government waits for completion of the inquiry and the report. If the report is favourable, it is accepted. Otherwise, the government may just refuse to accept it or act on its recommendations. In the meanwhile years pass on, as in the case of the Justice Srikrishna Commission, which took six years, and after which the victims obtained no justice [see further below].
In other cases, commissions work to exonerate the government as quickly as possible. Two examples of this practice are the Justice Wadhwa and Justice Mohan Commissions, both led by retired judges of the Supreme Court. Justice Wadhwa enquired into the death of Graham Staines and his two children. He exonerated the Bajrang Dal and the Sangh Parivar and brought the report within four months, stating that the killings were the work of one man, Dara Singh, when other reports and contemporaneous documents show differently. Justice Mohan reported on the death of 17 persons in the Tamraparni River, after the police used excessive brute force. The incident was recorded in photographs and several videotapes shot as the attack was going on. Yet Justice Mohan certified the police action in a report he brought promptly, containing half-truths, lies and several untenable inferences. The 17 persons killed – including a child – 31 persons injured and admitted to the hospital, and over 300 who had to jump into the river to save themselves, suffering injuries as a result, did not mean anything to this judge.
People’s initiatives and social action litigation
Where democratic governance fails it is for the people to take the initiative. This becomes imperative where the violations of human rights are significant and have taken place mainly because the state is apathetic. Law is about compromise between conflicting interests. If there is a conflict of interest in a society it is for the state to bring in a suitable law to resolve it and assure peaceful existence and development. Once a law is brought, it is seen primarily as an instrument of the government and state. If the state fails to enforce the law and protect human wellbeing, it does not mean that society has no role to play. Law is as much an instrument of society as it is of government.
It is for the society as a whole – not merely the victims – to take the initiative and address government failures. If a minority group is victimized, redress must come with support from the majority. Without this, a minority group cannot hope to get justice, as law enforcement will remain one-sided. The Dalits, then, cannot be left to fight their battle alone, for the confrontation is so unequal that they could not possibly succeed. The rest of society must come forward to join this struggle.
The concept of public interest litigation rests on an ideal that the state and society are obliged to support such struggles. In the past, the doctrine of locus standi held that victims alone should come to court for redress, and no one else on their behalf. This was during an era when private law dominated the legal scene. It was essentially a procedure to vindicate private rights, whether individual or proprietary. However with advent of welfare states, and increased state obligations, it became necessary for the courts to liberalize this doctrine. Now, when the state failed in its obligations towards the poor, weak and marginalized sections of society, the courts could not allow such injustice to continue simply because the persons affected were unable to come to court.
Thus the courts gradually changed their position, allowing, in the words of Justice P N Bhagvati (in the Judges’ Transfer Case AIR 1982 SC 144) any member of the public to seek a judicial remedy for a legal wrong caused
To a person or to a determinate class of persons, who by reason of poverty, helplessness or disability, or socially or economically disadvantaged position, is unable to approach the court directly.
Justice Bhagvati termed this “representative social action”; it is generally referred to as “social action litigation”. It has also been extended to a situation where an injury to the public is not clearly tangible. If there is a public wrong then there has to be a remedy. Again, in the words of Justice Bhagvati (Judges’ Transfer Case),
If no one can maintain an action for redressal of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the state or public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it.
Conceptually, Lok Adalats [People’s Courts] also fall into the same category as Social Action Litigation, as they are intended to provide easy access to justice in disputes between individuals, and between individuals and the state. Unfortunately, the Lok Adalat institution has now become a part of court mechanisms and has ceased to have any connection with people’s initiatives.
So also has ‘public interest litigation’ become ‘publicity interest litigation’, and in any case cannot be called social action litigation. There is hardly any public interest litigation for and on behalf of the poor, the Dalits or any socially and economically disadvantaged people in India. Moreover, the legal trappings such as rules relating to judicial precedents, resjudicata, hearsay evidence estoppel and various procedural requirements have all made this avenue for relief as uncertain as any other judicial process.
People’s initiatives, ‘jan sunvai’ and people’s tribunals
Internationally, people’s initiatives have led to people’s tribunals mainly to address serious human rights violations by states unwilling to provide any relief to the victims. The Permanent People’s Tribunal established in Italy in 1970, for instance, consisted of private citizens of high moral standing. It had no constitutional or statutory authority, initially carrying out its work on its own, later on the basis of the Algiers Declaration of 1976. This Tribunal investigated the allegations of the genocide of Armenian people in Turkey sometime in 1915, the role of the Soviet military in Afghanistan, the Indonesian use of force in East Timor, and the atrocities committed by the Marcos government in the Philippines. In each case the Tribunal heard witnesses, examined various reports and documents, and gave its judgement on the basis of the evidence produced before it. The judgements, together with the evidence, were published as reports. In each case the concerned government was invited to have its say on the evidence gathered by the Tribunal.
At this juncture reference should be made to the concept of ‘universal jurisdiction’ developing in the international community. This approach allows states to ensure that their national courts can exercise universal and other forms of extra-territorial jurisdiction over grave human rights violations and breaches of international humanitarian law. Among the human rights violations over which national courts may exercise universal jurisdiction are genocide, crimes against humanity, war crimes, extrajudicial killings, hostage taking, disappearances and torture. The principle may be applied irrespective of whether the crimes were committed by state or non-state actors. If any particular state fails to fulfil its responsibility, other states may request the suspect’s extradition. Courts in Austria, Denmark, Germany, the Netherlands, Sweden and Switzerland have exercised universal jurisdiction over grave crimes under international law that were committed in the former Yugoslavia. Courts in Belgium, France and Switzerland have opened criminal investigations or begun prosecutions related to genocide, crimes against humanity and war crimes committed in Rwanda. Italy and Switzerland have opened criminal investigations on torture, extrajudicial executions and enforced disappearances in Argentina. Spain, France, Belgium and Switzerland had sought the extradition of Augusto Pinochet, former head of the state of Chile, from the United Kingdom under this principle.
The important element of public hearings, then, is not the constitutional or statutory structure of any institution within any national jurisdiction, but rather the community’s conscience. When the state fails, this is what must be invoked above all else. This is the meaning of people’s tribunals, and public hearings, or ‘jan sunvai’.
One of the first public hearings within India was conducted by the Indian People’s Human Rights Tribunal (IPHRT), set up by the Indian People’s Human Rights Commission, on the killing of 23 people at Arwal, Bihar, in 1987. Justice Potti, retired Chief Justice of the Gujarat High Court, and Justice T U Mehta, retired Chief Justice of the Himachal Pradesh High Court, conducted the hearing. The next was in respect to the burning of 646 tribal huts in the district of Vishakapatnam by the Andhra Pradesh government in 1988, by Justices Chandrashekhar Menon and Jyotirmoy Nag, retired judges of the High Courts in Kerala and Calcutta respectively. Since then several inquiries have been conducted by the IPHRT, the most important being The people’s verdict, on the Bombay riots in December 1992 and January 1993. While releasing the report, Justice V R Krishna Iyer, president of IPHRT, said that
The right to know is a citizen’s right. The freedom of information is fundamental to all fundamental rights. A People’s Tribunal gathering information, collecting relevant materials on an event of public importance, sorting them out judiciously, marshallinq the evidence and conveying the whole testimony so gathered, in the shape of a report, is the discharge of public duty of the highest order. No one can, under the laws of India, stop the right to give or receive information, except where it is mischievously intended to skew the course of judicial justice.
For The people’s verdict, the Tribunal adopted a simple procedure. It recorded the statements of the victims who came to depose. The social activists who had visited different areas and had collected materials placed them before the Tribunal. There were many contemporaneous reports that were all recorded. Media reports and audio and videotapes also helped the Tribunal test the veracity of the victims’ version. In particular it observed that
It is true that the witnesses have not been cross-examined. But our sittings were open to the public and all those interested were welcome. We would have been happy if the police had attended our sittings. But just because there has been no challenge to the evidence before us, it cannot be said that the evidence is not reliable. Most of the victims have suffered injuries and have lost everything; their livelihood, their belongings and their place of living. They have not been able to get justice, so far. In the case of some, their earlier statements in the form of complaints, [First Information Reports] and Panchanamas [police inquiries], are all on record and they have tendered copies of those documents. Therefore there is no reason why evidence so received cannot be accepted.
Moreover, the evidence came to be recorded in an atmosphere where there was no fear or favour. Ours is a friendly tribunal, where the victims would give vent to their feelings of the trauma they had undergone. In this sense, as compared to government-appointed enquiry commissions, a tribunal like ours has a better chance at arriving at the truth. In fact many victims who were nervous about giving the names of their assailants to the partisan police, had the confidence to disclose them to us.
The report was ready within six months, with all the summary of evidence, the findings of the Tribunal and its various recommendations. The official inquiry, the Justice Srikrishna Commission, took six years to complete. Importantly, the findings of that official commission and the findings of the IPHRT were virtually identical. The same occurred in the case of the IPHRT report Gunning down Dalits, on the police firing at the Ramabai colony, Ghatkopar, Mimbai, on 11 July 1997. That report was ready within a month of the incident, whereas the official commission, the Justice Gundewar Commission, took 13 months to reach the same conclusions.
Current and future prospects
On 18 & 19 April 2000, the National Public Hearing on atrocities against Dalits was held in Chennai. It outlined its purposes as follows:
a. To provide space for the Dalit victims of atrocities to depose their cases before the People’s Court of the national and international community,
b. To give an opportunity to the national and international community to express their solidarity with the victims,
c. To solicit support from the media for the purpose of creating and shaping public opinion against such atrocities,
d. To provide a platform for those who are concerned about upholding human rights,
e. To bring to the minds of those obligated with the responsibility of maintaining law and order and dispensing justice in the democratic polity,
f. To impress forcefully on the minds of the dominant caste groups that the feudal character and the practice of untouchability is an anachronism
in these changing times.
These reasons aptly summarize how public hearings can be used in the fight against discrimination and the struggle for equality of the Dalits. The task of these ‘jan sunvai’ is a meaningful one: to awaken the consciousness of society at large to the urgency of the need to restore and uphold the rights of Dalits.