Elusive Justice for Tribals

The Supreme Court of India in a recent judgment in a case of naked parading of a Bhil tribal woman (Criminal Appeal No. 11/2011(Arising out of Special Leave Petition (Crl) No. 10367 of 2010, Kailas & Others versus State of Maharashtra JJ Markandeya Katju & Gyansudha Mishra) has come down heavily on the non-tribals in India for having over the millenia continually harassed and dispossessed the tribals. Some of the relevant paragraphs of the judgment praising the Tribals and castigating their marginalisation are as follows -

4. This appeal furnishes a typical instance of how many of our people in India have been treating the tribal people (Scheduled Tribes or Adivasis), who are probably the descendants of the original inhabitants of India, but now constitute only about 8% of our total population, and as a group are one of the most marginalized and vulnerable communities in India characterized by high level of poverty, illiteracy, unemployment, disease, and landlessness.

17. The Bhils are probably the descendants of some of the original inhabitants of India living in various parts of the country particularly southern Rajasthan, Maharashtra, Madhya Pradesh etc. They are mostly tribal people and have managed to preserve many of their tribal customs despite many oppressions and atrocities from other communities.

18. It is stated in the Article `World Directory of Minorities and Indigenous Peoples - India: Advasis', that in Maharashtra, Bhils were mercilessly persecuted in the 17th century. If a criminal was caught and found to be a Bhil, he or she was often killed on the spot. Historical accounts tell us of entire Bhil communities being killed and wiped out. Hence, Bhils retreated to the strongholds of the hills and forests.

19. Thus, Bhils are probably the descendants of some of the original inhabitants of India known as the `aborigines' or Scheduled Tribes (Adivasis), who presently comprise of only about 8% of the population of India. The rest 92 % of the population of India consists of descendants of immigrants.

32. Since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for all communities and sects. It was due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.

33. Thus, it is the Constitution of India which is keeping us together despite all our tremendous diversity, because the Constitution gives equal respect to all communities, sects, lingual and ethnic groups, etc. in the country. The Constitution guarantees to all citizens freedom of speech (Article 19), freedom of religion (Article 25), equality (Articles 14 to 17), liberty (Article 21), etc.

34. However, giving formal equality to all groups or communities in India would not result in genuine equality. The historically disadvantaged groups must be given special protection and help so that they can be uplifted from their poverty and low social status. It is for this reason that special provisions have been made in our Constitution in Articles 15(4), 15(5), 16(4), 16(4A), 46, etc. for the upliftment of these groups.      Among these disadvantaged groups, the most disadvantaged and marginalized in India are the Adivasis (STs), who, as already mentioned, are the descendants of the original inhabitants of India, and are the most marginalized and living in terrible poverty with high rates of illiteracy, disease, early mortality etc.

Their plight has been described by this Court in Samatha vs. State of Andhra Pradesh and Ors. AIR 1997 SC 3297 (vide paragraphs 12 to 15).

Hence, it is the duty of all people who love our country to see that no harm is done to the Scheduled Tribes and that they are given all help to bring them up in their economic and social status, since they have been victimized for thousands of years by terrible oppression and atrocities. The mentality of our countrymen towards these tribals must change, and they must be given the respect they deserve as the original inhabitants of India.

35.   The bravery of the Bhils was accepted by that great Indian warrior Rana Pratap, who held a high opinion of Bhils as part of his army.                                                                          

36. The injustice done to the tribal people of India is a shameful chapter in our country's history.    The tribals were called `rakshas' (demons), `asuras', and what not. They were slaughtered in large numbers, and the survivors and their descendants were degraded, humiliated, and all kinds of atrocities inflicted on them for centuries. They were deprived of their lands, and pushed into forests and hills where they eke out a miserable existence of poverty, illiteracy, disease, etc. And now efforts are being made by some people to deprive them even of their forest and hill land where they are living, and the forest produce on which they survive.

37. The well known example of the injustice to the tribals is the story of Eklavya in the Adiparva of the Mahabharat. Eklavya wanted to learn archery, but Dronacharya refused to teach him, regarding him as low born. Eklavya then built a statue of Dronacharya and practiced archery before the statue. He would have perhaps become a better archer than Arjun, but since Arjun was Dronacharya's favourite pupil Dronacharya told Eklavya to cut off his right thumb and give it to him as `guru dakshina' (gift to the teacher given traditionally by the student after his study is complete). In his simplicity Eklavya did what he was told.

38. This was a shameful act on the part of Dronacharya. He had not even taught Eklavya, so what right had he to demand `guru dakshina', and that too of the right thumb of Eklavya so that the latter may not become a better archer than his favourite pupil Arjun?

39. Despite this horrible oppression on them, the tribals of India have generally (though not invariably) retained a higher level of ethics than the non-tribals in our country. They normally do not cheat, tell lies, and do other misdeeds which many non-tribals do. They are generally superior in character to the non tribals. It is time now to undo the historical injustice to them.

The case in particular that resulted in the above observations of the Supreme Court is as follows -

7.  The prosecution case is that the victim Nandabai who belongs to the Bhil community was residing with her father, handicapped brother, and lunatic sister. She had illicit relations with Prosecution Witness 9 Vikram and had given birth to his daughter and was also pregnant through him for a second time. Vikram belongs to a higher caste and his marriage was being arranged by his family with a woman of his own caste. On 13.5.1994 at about 5.00 P.M.when the victim Nandabai was at her house the four accused went to her house and asked why she had illicit relations with Vikram and started beating her with fists and kicks. At that time the accused Kailas and Balu held her hands while accused Subabai alias Subhadra removed her sari. The accused Subhash then removed her petticoat and accused Subabai tore the blouse and brassiere of the victim Nandabai. Thereafter the accused Subabai and Balu paraded the victim Nandabai on the road of the village and at that time the four accused herein were beating and abusing the victim Nandabai.

8. At about 8.40 p.m. an FIR was lodged at Taluka Police Station and after investigation a charge-sheet was filed.  After taking evidence the learned Additional Sessions Judge Ahmednagar convicted the four accused on 05.02.1998 under Sections 452 (relating to house trespass), 354 (relating to forcibly outraging the modesty of a woman) , 323 (relating to physical chastisement), 506(2) (relating to criminal intimidation threatening death and outraging the modesty of a woman) read with Section 34 IPC (combining to commit a criminal act) and sentenced to suffer RI for six months and to pay a fine of Rs. 100/-. They were also sentenced to suffer RI for one year and to pay a fine of Rs. 100/- for the offence punishable under Sections 354/34 IPC.

They were also sentenced under Section 323/34 IPC and sentenced to three months RI and to pay a fine of Rs. 100/-. The appellants were further convicted under Sec 3 (committing atrocities against a tribal) of the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to suffer RI for one year and to pay a fine of Rs. 100/-.

7. In appeal before the High Court the appellants were acquitted of the offence under Section 3 of the SC/ST Act, but the conviction under the provisions of the IPC were confirmed. However, that part of the order regarding fine was set aside and each of the appellant was directed to pay a fine of Rs. 5000/- only to the victim Nandabai.

The Supreme Court while considering the appeal filed by the accused against the order of the High Court had this to say about the case -

10.   We are surprised that the conviction of the accused under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was set aside on hyper technical grounds that the Caste Certificate was not produced and investigation by a Police Officer of the rank of Deputy Superintendent of Police was not done. These appear to be only technicalities and hardly a ground for acquittal, but since no appeal has been filed against that part of the High Court judgment, we are now not going into it.

11. However, we see no reason to interfere with the judgment of the High court convicting the appellants under various provisions of the IPC and imposing fine on them. In fact, we feel that the sentence was too light considering the gravity of the offence.

15. The parade of a tribal woman on the village road in broad day light is shameful, shocking and outrageous. The dishonor of the victim Nandabai called for harsher punishment, and we are surprised that the State Government did not file any appeal for enhancement of the punishment awarded by the Additional Sessions Judge.

16. It is alleged by the appellants that the people belonging to the Bhil community live in torn clothes as they do not have proper clothes to wear. This itself shows the mentality of the accused who regard tribal people as inferior or sub-humans. This is totally unacceptable in modern India. Instances like this one with which we are concerned in this case deserve total condemnation and harsh punishment.

41. With these observations the appeal stands dismissed.

In the light of the facts of the case and the Supreme Court's scathing comments on the atrocities committed over the centuries against the tribals in India, the need to correct this historical injustice and the recommendation that the accused in such cases should be given harsh punishment it is surprising that the Supreme Court itself did not increase the punishment. The minimum punishment under Section 506(2) of IPC is seven years rigorous imprisonment and the maximum is life imprisonment. The Court could also have overturned the acquittal of the accused by the High Court under the Atrocities Act. Just because the Maharashtra Government had not appealed for increase of the punishment or the reversal of the acquittal under the Atrocities Act by the High Court, the Supreme Court should not have washed its hands of the matter. It should have suo moto used its powers to give exemplary punishment to the accused even to the extent of ordering that the sentences for the separate counts of crime should run one after the other and not concurrently. However, since the Supreme Court has not increased the punishment in this case even after saying so strongly that it should have been done, then what is the point in all those strong statements of condemnation. The lower courts, hereafter, can cite this judgment and say that since the Supreme Court has not increased the punishment so they can stick to giving smaller punishements of a few months to a year even in such blatant cases of highly patriarchal and shameful violations of the dignity and security of a tribal woman.

In fact the Supreme Court has often made scathing observations regarding the ineffectiveness of the state authorities in curbing injustices against the tribals and dalits in this country by the upper castes but it has not walked the talk by slapping exemplary punishments on the offenders. The weakness of civil society and especially the deprived sections in the face of State and upper class impunity is a genuine threat to democracy in this country.