Sons, daughters and juniors of the judges or advocates are treated specially with comfortable jokes and witticism inside the court rooms, writes a first-generation Dalit lawyer.
ThePrint is publishing articles on Dalit issues as part of Dalit History Month.
India was ranked 62nd among 113 countries in the World Justice Project’s ‘Rule of Law’ index that was published in January. India was placed 98th in the ranking for order and security, 97th for civil justice, 75th for fundamental rights, and 66th for criminal justice.
While the whole world is pushing towards enacting new anti-discrimination laws, reforming judicial systems, India’s Supreme Court has delivered a judgment against the very purpose of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 — to ensure the fundamental right of equality by achievement of social justice.
On the very same day the judgment was delivered, two Tamil Nadu policemen attempted to immolate themselves outside the DGP’s office to protest against the caste-based discrimination they faced in the firearms unit, after no attention was paid to their complaint by the senior officer of the department.
As the legal adviser of the Tamil Nadu SC/ST Central and State Government Employees Association, I have received reports suggesting that, in the majority of caste discrimination complaints, officials refuse to accept complaints filed by Dalit employees. If at all they are accepted, instead of action against the offender, it is often the complainant who is subjected to disciplinary action. In fact, several of them are either not allowed to retire or denied retirement benefits.
It is also a well known fact that despite the enactment of the PoA Act, crime against Dalits, including sexual violence against the community’s women, has increased by 66 per cent in the past decade, and the conviction rate of cases under the Act is very low. Though most of the offences committed against Dalits are cruel in nature, resulting in threat to life, it took almost 70 years to bring an amendment to the Act to add atrocities such as tonsure, garlanding with footwear, painting faces, and parading people naked. In the year 2015, two Dalit girls in Uttar Pradesh were ordered by the panchayat to be paraded naked and raped. Until a petition was filed before the Supreme Court and a direction issued to the authorities, no police action was taken.
A detailed study undertaken by the Council for Social Justice (Ahmedabad) reveals that over 95 per cent of the cases under the Act have resulted in acquittals due to technical lapses on account of a negligent police investigation and hostile public prosecutors.
Under such a system, this “misuse-of-PoA-Act” judgment, in the name of “protecting innocents” and “enforcing fundamental rights”, has vested enormous powers in the authorities to decide the commission of an offence under the PoA Act. This allows greater scope for caste-biased officers to abuse the rule of law.
This has only reaffirmed what Dr B.R. Ambedkar, back in the year 1932, wrote to A.V. Thakkar, general secretary of the Anti-Untouchability League: “The police and the magistracy are as corrupt as they could be, but what is worse is that they are definitely political in the sense that they are out not to see that justice is done but to see that the dignity and interests of the caste Hindus as against the depressed classes are upheld”.
When the observations in the Supreme Court judgment — that “no procedural technicality can stand in the way of enforcement of fundamental rights”, and that “the atrocities Act should not result in perpetuating casteism which can have an adverse impact on integration of the society and the constitutional values” — are in direct contradiction with the reality, the important question that arises is this: How did such an insensitive precedent and atrocious language that is even more grievous than the atrocity itself come from the Supreme Court of India in spite of the progressive Constitution?
It is because the fundamental structure of the courts lacks diverse representations in appointments.
The Indian courts operate with the most openly biased system of senior engagement that rewards ‘face value’ rather than the competency of an advocate to represent the cause of a client. Anyone who is a lawyer or has been to courts will definitely acknowledge this.
I, myself, in my 10 years of practising law, have faced discrimination as a first-generation Dalit woman lawyer who did not get to join a senior advocate’s office. Most of the time, as a young independent lawyer presenting my case, or when a senior advocate appears as the opponent, I have been literally asked to shut up. Many of my women colleagues have the same complaint. On the other hand, the sons, daughters and juniors of the judges and advocates are treated specially, with comfortable jokes and witticisms, inside court rooms. I have also witnessed judges greatly encouraging those clans by granting stays and positive orders even on occasions where they request adjournments.
In his autobiography, ‘Before Memory Fades’, jurist and senior Supreme Court advocate Fali S. Nariman wrote, “When you name a lawyer who has done well, people ask you, ‘From which chamber?’ The chamber is important. It establishes the hierarchy and cultural tradition in which the lawyer has been reared.”
This means, firstly, prima facie discrimination exists on the basis of the chamber one comes from and, secondly, those privileged, belonging to the same chambers with similar area of practice, get designated as senior advocates and eventually elevated as judges.
That is why — except Justice R. Banumathi, who was elevated from the high court as per seniority — there are no women or Dalit judges in the Supreme Court.
When amicus curiae and arbitrators are appointed, lawyers from oppressed communities, who could bring a different perspective to the cases, are not considered.
If it is only the perspectives of the mainstream privileged majority that are considered, the interpretation of statutes and the legal position will obviously be discriminatory in nature — a sign that the justice system is broken.
To uphold the constitutional values of equality, to protect the interests of the oppressed and administer fair justice, diverse opinions have to be available in and outside court rooms. This will happen when there is adequate representation among judges, designated senior advocates, young advocates, law clerks, and court managers of the oppressed communities that come from the bottom of the social pyramid.
To accomplish the vision of the Constitution of India, a judiciary imbued with the value of social justice is crucial. In the representative judicial system, it is necessary to eliminate conscious and unconscious caste bias.
Kiruba Munusamy is a Dalit lawyer practising in the Supreme Court of India and the founder-executive director of Legal Initiative for Equality.
Read more from ThePrint’s Dalit History Month archives.