Monitoring Mechanisms & Tools:
The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act 1989 and Rules 1995 (PoA) has government mechanisms to monitor its implementation at the state, district, and sub-divisional levels. The state level mechanism is the state level vigilance and monitoring committee, SVMC [Rule 16], the DVMC at the district [Rule 17] and the SdVMC at the sub-divisional level [Rule 17A]. In addition, the state is required to issue certain notifications and take preventive action, and when an atrocity takes place, provide protection [Rule 12(2)], relief [Rule 15(1)], compensation, and rehabilitation to the communities (victims, survivors, witnesses, informants, and their dependents) [Rule 12(4)], and provide allowances to them and their accompaniers for travel and maintenance during investigation and trial [Rule 11]. It is the duty of the state to ensure that the victims, witnesses, informants, and their dependents can exercise their rights [Section 15A].
The PoA can be monitored by citizens using two laws and one landmark judgement of the Supreme Court of India. These foundational legislations are the internal mechanisms provided within the PoA itself, the Right to Information Act 2005 (RTI) and the reports of the high powered standing committee on fixing responsibility for acquittals set up in each state on the orders of the Supreme Court of India (paragraphs 20 and 21) in the State of Gujarat Vs. Kishanbhai etc. [Criminal Appeal No. 1485 of 2008] of 7 January 2014.
The prerequisite for effective monitoring is domain expertise, so master these laws. Equally important is to get yourself and your organisation recognised by the state as an ‘associated individual’ and an ‘associated organisation’ referred to in Section 15A(11) of the PoA. (Associated organisations do not have to be registered, though non-governmental organisations need to be). This recognition considerably eases the flow of information, as the information can then be claimed as a right by the human rights organisation and defender.
Why we should monitor implementation of this Act
“Enforcement of the law is effective only if there is will and intention to implement them. Merely adding laws to the existing list does not help”
Minister for Home Affairs P Chidambaram, Lok Sabha, 30 Aug 2010
Monitoring the implementation of this Act is to ensure prevention of atrocities, and quick administration of justice, and socio-economic rehabilitation in case atrocities.
India has sufficient laws and policies. India needs effective implementation of existing laws and effective functioning of existing mechanisms. The law addressing caste based discrimination and violence (CBDV)— POA —is one of the most precise legislations in the world—including actual calendar dates (‘20th of every month’, ‘meet in the months of January and July’), precise authorities, amounts and functions. The mechanisms and standards for prevention, administration of justice, monitoring, relief and rehabilitation are extensive. It even has state [Rule 16(1)] and district [Rule 17] level monitoring mechanisms with precise composition [Rule 16(1) and Rule 17(2)] and periodicity – January and July for SVMCs [Rule 16(2)], quarterly for DVMCs [Rule 17(3)].
However, there is little incentive for the officials – who are steeped in the same social prejudice – to implement the Act. Given that the lawmakers are also from the dominant sections, there is every incentive not to implement it, since they hold the Damocles sword of punitive transfers over conscientious civil servants. It is only with citizen effort that the Act will be implemented. Lack of active citizens monitoring implementation of the Act has resulted in single digit rate of convictions, even though there has been struggles to get FIRs registered. This dismal conviction rate is because there has been little monitoring of the case at subsequent stages, and less monitoring of the officials who are tasked with implementation.
As citizens there is little we can do to compel compliance, but with systematic, regular monitoring, there will be accumulated evidence of non-performance that will be hard to ignore by the courts and the administration of justice system. The systematic monitoring will also enable a better implementation design both for the state mechanisms and civil society.
Who and what should we monitor
DAHRDs do need to focus on individual cases. But that is not enough. There is a need to go beyond individual cases to analyse the data to find patterns, to file PILs and build case law. From individual atrocities, HRDs need to move to a systems audit and an inclusion agenda.
The following needs to be monitored: Whether the
- Survivors and their dependents getting the relief and compensation on time, and as per regulations.
- Survivors, their dependents, and accompaniers are getting the travel and daily allowance during investigation and trial on time (within three days) as per regulations.
- Officials are performing the duties on time (from the preventive measures, to spot visits by the DM and SP, to filing the FIR, to sending periodic reports to the nodal officer, conducting periodic meetings, reviews of the SPP and DSP etc).
- DVMC and SdVMC members are reviewing the status of the cases quarterly, and taking appropriate action on the open cases, including appeals for acquitals.
- Chief Minister and the SVMC are actually meeting every January and July to monitor the implementation of the Act and the functioning of the officials.
It is when the concerned authorities are monitored that they will have the incentive to fulfil their duties. Once the authorities fulfil their monitoring tasks, then the officials will do theirs – starting a virtuous cycle. Moreover, it is when the track record of the concerned officials are scrutinised, we will know if they have the ‘right aptitude and understanding of the problems of The Scheduled Castes and The Scheduled Tribes’ [Rule 13] to be posted in the sensitive areas, take up the investigation, or appear as a special public prosecutor.
Monitoring, thus, is to help the government to ensure that
- Officials with the ‘suitable aptitude and understanding of the situation of the scheduled communities’ [Rule 13] are posted to sensitive areas.
- Investigating officers with ‘past experience, sense of ability and justice to perceive the implications of the case’ [Rule 7] are assigned to the cases.
- All procedures (investigation, trial, relief, and compensation) are done on time.
- Accountability is enforced.
Rights of Victims, Witness, Defenders, and Organisations:
15A. Rights of victims and witnesses.—
(1) It shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence.
(2) A victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim’s age or gender or educational disadvantage or poverty
(3) A victim or his dependent shall have the right to reasonable, accurate, and timely notice of any Court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act.
(4) A victim or his dependent shall have the right to apply to the Special Court or the Exclusive Special Court, as the case may be, to summon parties for production of any documents or material, witnesses or examine the persons present.
(5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.
(6) Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), the Special Court or the Exclusive Special Court trying a case under this Act shall provide to a victim, his dependent, informant or witnesses––
(a) the complete protection to secure the ends of justice;
(b) the travelling and maintenance expenses during investigation, inquiry and trial;
(c) the social-economic rehabilitation during investigation, inquiry and trial; and
(7) The State shall inform the concerned Special Court or the Exclusive Special Court about the protection provided to any victim or his dependent, informant or witnesses and such Court shall periodically review the protection being offered and pass appropriate orders.
(8) Without prejudice to the generality of the provisions of sub-section (6), the concerned Special Court or the Exclusive Special Court may, on an application made by a victim or his dependent, informant or witness in any proceedings before it or by the Special Public Prosecutor in relation to such
victim, informant or witness or on its own motion, take such measures including––
(a) concealing the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to the public;
(b) issuing directions for non-disclosure of the identity and addresses of the witnesses;
(c) take immediate action in respect of any complaint relating to harassment of a victim, informant or witness and on the same day, if necessary, pass appropriate orders for protection:
Provided that inquiry or investigation into the complaint received under clause (c) shall be tried separately from the main case by such Court and concluded within a period of two months from the
date of receipt of the complaint:
Provided further that where the complaint under clause (c) is against any public servant, the Court shall restrain such public servant from interfering with the victim, informant or witness, as the case may be, in any matter related or unrelated to the pending case, except with the permission of the Court.
(9) It shall be the duty of the Investigating Officer and the Station House Officer to record the complaint of victim, informant or witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence, whether given orally or in writing, and a photocopy of the First
Information Report shall be immediately given to them at free of cost.
(10) All proceedings relating to offences under this Act shall be video recorded.
(11) It shall be the duty of the concerned State to specify an appropriate scheme to ensure implementation of the following rights and entitlements of victims and witnesses in accessing justice so as––
(a) to provide a copy of the recorded First Information Report at free of cost;
(b) to provide immediate relief in cash or in kind to atrocity victims or their dependents;
(c) to provide necessary protection to the atrocity victims or their dependents, and witnesses;
(d) to provide relief in respect of death or injury or damage to property;
(e) to arrange food or water or clothing or shelter or medical aid or transport facilities or daily allowances to victims;
(f) to provide the maintenance expenses to the atrocity victims and their dependents;
(g) to provide the information about the rights of atrocity victims at the time of making complaints and registering the First Information Report;
(h) to provide the protection to atrocity victims or their dependents and witnesses from intimidation and harassment;
(i) to provide the information to atrocity victims or their dependents or associated organisations or individuals, on the status of investigation and charge sheet and to provide copy of the charge sheet at free of cost;
(j) to take necessary precautions at the time of medical examination;
(k) to provide information to atrocity victims or their dependents or associated organisations or individuals, regarding the relief amount;
(l) to provide information to atrocity victims or their dependents or associated organisations or individuals, in advance about the dates and place of investigation and trial;
(m) to give adequate briefing on the case and preparation for trial to atrocity victims or their dependents or associated organisations or individuals and to provide the legal aid for the said purpose;
(n) to execute the rights of atrocity victims or their dependents or associated organisations or individuals at every stage of the proceedings under this Act and to provide the necessary assistance
for the execution of the rights.
(12) It shall be the right of the atrocity victims or their dependents, to take assistance from the Non-Government Organisations, social workers or advocates.
Stages of a Case
Stage 1: Atrocity
- Within 24 hours, the District Magistrate (DM) and Superintendent of Police (SP) must visit the place of atrocity [Rule 12(1); TN Model Contingency Plan (TNCP)].
- The SP must provide necessary protection [Rule 12(3)], and the DM must provide relief and assistance including medical aid, food, clothing, shelter etc. [Rule 12(4)] to the victims/dependents and witnesses [Section S15A(1); Rule 12; TNCP].
- After assessing the loss of life and damage to the property, a list of victims, their family members and dependants entitled to relief should be prepared by the DM [Rule 12(1)].
- Victims and their dependents have a right to take the assistance from NGOs, social workers or advocates [Section 15A(12)].
Stage 2: FIR stage
- FIR should be registered without conducting any preliminary inquiry [Section 18A]. It is the responsibility of SP to visit the place of atrocity [Rule 12(1)] within 24 hours (TNCP), identify the victims, witnesses, accused and extent of damage, and ensure that the FIR is registered and effective measures for apprehending the accused are taken [Rule 12(2)].
- It is the responsibility of the Inspector/Sub-Inspector, immediately after registering the FIR, to provide a copy of the FIR free of cost to the victims and to inform the victims of their rights [Section 4(2)(b), Section 4(2)(c), Rule 5(2); TNCP].
- Once the FIR is registered, the victims are entitled for a certain amount of compensation as stipulated in Rule 12(4) (detailed in Annexure 1 of the Schedule).
Stage 3: Investigation
- A case where POA is invoked should be investigated by an officer of minimum DSP rank appointed by the government for each case [Rule 7, Rule 12(3)]. In Tamil Nadu, it would normally be the DSP from the Social Justice and Human Rights Wing (the designated SCs and STs Protection Cell in Tamil Nadu) in the respective district.
- Dates, places, and status of investigation should be informed to the victims or their dependents or associated organisations or individuals, on the status of investigation [Section 15A(11)(i), Section 15A(11)(l), TNCP)].
- After completing the investigation in top priority, the charge sheet should be filed in the Special Court within 60 days from the date of filing of FIR [Rule 7(2)].
- Any delay in the investigation or filing of the charge sheet must be explained in writing by the investigating officer [Rule 7(2A)].
- The copy of the charge sheet should be given to the victims or their dependents or associated organisations or individuals free of cost [Section 15A(11)(i), Rule 5(2), TNCP)].
- Once the charge sheet is filed, the victims are entitled for a part of the compensation as stipulated in Rule 12(4) (detailed in Annexure 1 of the Schedule).
Stage 4: Trial
- The survivors or their dependents or associated organisations or individuals have a right to adequate briefing on the case and preparation for trial to atrocity victims, and legal aid [Section 15A(11)(m)].
- The cases should be disposed of within two months as far as possible [Section 14(2)].
- Cases under the PoA are prosecuted by a Special Public Prosecutor (SPP) or an Exclusive Special Public Prosecutor (ESPP) who is appointed by the state government under Section 15(1) and Section 15(2). They should have at least seven years experience.
- If the survivor prefers, they can choose an advocate from the panel appointed by the government under Rule 4(5).
- The survivor also has the option of choosing an eminent advocate of their choice [Rule 4(5)]. The advocate will be paid by the government.
- It is the responsibility of the investigating officer (the DSP appointed for the case) to provide legal assistance to victims throughout the trial (The TNCP mentions that the District Collector is also responsible, but in practice it would be the DSP, who is the investigating officer and charge sheeting authority for the case).
- The victims, witnesses, dependents, attendants are entitled for travel and daily allowances, maintenance and diet expenses during investigation, inquiry and trial. They should get this within three days (R11(6)).
Stage 5: Judgement
- Judgment is delivered by the special court at the conclusion of the trial.
- The cases under the PoA should be disposed of within two months as far as possible [Section 14(2)]. Proceedings should be conducted on a daily basis until all witnesses in attendance have been examined. There should be no unnecessary adjournments. Reasons for any adjournment beyond the following day must be recorded in writing by the judge of the Special Court [Section 14(3)].
- Victims/dependents have a right to be heard in respect of bail, discharge, release, parole, conviction or sentence of an accused [Section 15A(5)].
- It is the responsibility of the District Collectors, SP, and City Police Commissioners to protect the witnesses from intimidation and harassment [Section 15A(11)(h), TNCP]. If they face any such harassment a complaint can be made before the Special Court which will pass appropriate orders for their protection. [Section 15A(8)].
- At conviction or, in some cases, at the conclusion of the trial (mainly in crimes against women) the victims are entitled for a part of the compensation stipulated in Rule 12(4) (detailed in Annexure 1 of the Schedule).
Stage 6: Appeal
- Appeals against the judgment of the Special Court are made before the High Court. Both issues of fact and law can be appealed.
- Appeals against acquittal can be made either by the government or the victim-survivor. Victim-survivors have an independent right to appeal against an order passed by the special court acquitting the accused or convicting them for lesser offences. (Section 372 of CrPC; Mallikarjun Kodagali vs State of Karnataka & Ors., Criminal Appeal Nos. 1281-82 of 2018). These appeals should be disposed off within three months.
- The victim-survivors and witnesses are also entitled to rights under Section 15A in the appellate stage.
- Those convicted will appeal against conviction. We need to ensure that there is a strong response to ensure that the convictions are not overturned.
- The Tamil Nadu state annual reports (2010-20) show that there are no appeals in cases acquittal. Data for appeals against conviction is not given in the state annual report.
Stage 7: Jail
Given that caste based crimes have high emotional investment, it is important that the convicts are kept behind bars until they, their families, or their castes cannot cause additional harm to the victim-survivours, witnesses, and their families, individually or collectively.
Jail is thus a cooling period – for corrections, for passions to cool, the lives to be rebuilt, and to ensure security for the whole community. Even after decades of incarceration, it is likely that the tendency for revenge remains high (by the convicts and their castes), and the chances of ‘retaliation’ due to the imbibed sense of privilege (‘how dare they complain and put me in jail, I will show them the power of my caste’) are real.
Therefore the survivors, victims, witnesses and concerned organisations and individuals have the right to be:
a) Heard before any remission of sentence or parole [Section 15A(5)].
b) Informed before any parole, and be given a chance to challenge it [Section 15A(5)]