The golden period of the Ambedkarite movement after the demise of Dr Babasaheb Ambedkar

belonged to the Dalit Panther. The militant organization was formed on 29 May 1972. Five years
later, it was disbanded through a declaration at a press conference held in Mumbai on 7 March
1977. An ideological schism among its leaders prompted Namdeo Dhasal to sack Raja Dhale and
me by announcing it in the newspapers published from Mumbai on 30 September 1974. It
culminated in Dhasal being sacked at the first convention of the organization held in Nagpur on
23 and 24 October 1974. In June 1975, then Prime Minister Indira Gandhi declared Emergency
in India, imposing restrictions on newspapers and organizations. Hence, the period from May
1972 to June 1975 was the most crucial in the activities of the Dalit Panther movement.

During this period, the Dalit Panther movement caused a storm, shattering contemporary
sociopolitical ethos and recharging Ambedkar’s followers to combat rising injustice and
atrocities. It transformed youths, who took to the streets as committed footsoldiers of the
movement, took on the system and provided relief to the victims. During its short life, the
organization shook up the government from its slumber and forced it to take note of the plight of
the oppressed people. The struggle of the Dalit Panther movement was not just for the economic
upliftment of the Dalits but also for the implementation of their Constitutional rights and the
establishment of liberty, equality and fraternity.

The Dalit Panther was at its prime until 4 January 1974. On 5 January 1974, a masterminded riot
engulfed the entire Mumbai metropolis, especially Worli and Naigaon, and claimed the lives of
Dalit Panthers Bhagwat Jadhav and Ramesh Deorukhkar. The riot devastated the lives of
numerous youngsters, who lost their jobs and had to languish in prisons. Their sacrifices,
however, rejuvenated the Ambedkarite movement, in sharp contrast to those who had mortgaged
it at the feet of the rich and the powerful in return for crumbs of power and wealth. During its
short life, the Dalit Panther made a lasting impact on Indian society and politics. The impact of
the movement has been so historic that after four members of a Dalit family (including a woman
and her teenage daughter) were brutally killed in Khairlanji village in Bhandara district of
Maharashtra in 2006, there were spontaneous demands for a militant organization like the Dalit
Panther to take on the perpetrators of caste atrocities.

A lot has been written on the movement, including research papers and anthologies, based on
information gathered from newspapers and conversations with the people who were in the
movement. The movement has been analyzed and interpreted by many to suit their convenience
or ideological stance, often veering off on the verge of distorting history. For the sake of easy
publicity and the consequent gains, many people masqueraded as experts on the movement,
including some claiming to have fathered it. I have been a witness of this period from day one. I
have actively participated in the movement, not just as a spectator or a writer, but as one of the
people who initiated it. Hence, while assigning the paternity of the Dalit Panther organization to
Namdeo Dhasal and myself, I consider the nurturing of the movement by Raja Dhale as
important.
I feel that only three persons can write the history of the Dalit Panther movement: Raja Dhale,
Namdeo Dhasal and J.V. Pawar (myself). I was the organizer and later, the general secretary of
the organization and therefore I am in possession of all the relevant correspondence and
documentation. During those days, there were no photocopying machines and I had to use carbon
paper to make copies of letters or statements, all of which I have preserved. What this means is
that my writing is authentic and supported by documents. Besides, the Government of
Maharashtra gave me access to its archives, including documents from the police and
intelligence departments, which further enriched me.
I have written a series in Marathi on “The Ambedkarite movement after Dr B.R. Ambedkar” and
this book is the fourth in the series. The era of the Dalit Panther was the glowing period about
which many people, including Raja Dhale, Namdeo Dhasal and other intellectuals have already
written.
During the days of the Dalit Panther, Marathi newspaper Nava Kaal, founded by its editor
Neelubhau Khadilkar, had opened its door for us, as if it were our mouthpiece. There were
several other newspapers like Nav Shakti, Maratha, Maharashtra Times, Loksatta and Sakaal,
which helped the movement by publicizing its activities. I am indebted to all of them.
Since Babasaheb Ambedkar’s Mahaparinirvana on 6 December 1956, the Ambedkarite
movement has tasted both victory and defeat. The victory has been that the movement has,
through the years, attained social, educational and cultural maturity. In the literature and the arts,
the movement reached the pinnacle at various moments – especially Ambedkarite literature,
which has now gained respect and acceptance as the only literature that matters, because it is
based on realism. So much so that what was so far called Dalit Literature is now referred to as
Ambedkarite literature. The conditions in society today are vastly different from those prevailing
in the pre-Ambedkar era and the transformation can be attributed to Ambedkar’s call to educate,
organize and agitate.
I am not an activist or a writer from Ambedkar’s time. During Ambedkar’s time, many people
contributed to the journals he edited — Mook Nayak and Prabuddha Bharat. But they were
simply chroniclers of that age. However, C.B. Khairmode’s documentation remains quite
invaluable. I did not want to merely document the post-Ambedkarite movement but also analyze
it. I was involved in the movement myself. I wasn’t merely an observer sitting on the sidelines. I
can, therefore, stake my claim to analyze the history of the movement. Apart from being at the
forefront of the movement since 1972, I led the student wing of Dadasaheb Gaikwad’s popular
land agitation in 1964.
In 1972, with my poet-friend Namdeo Dhasal, I co-founded the Dalit Panther. Although it was a
short-lived movement, just like the Black Panther in the United States, among all the post-
Ambedkarite movements, the Dalit Panther enjoys the greatest admiration.
It was the period of struggle and hardships that earned Dalit Panthers their credibility and
reputation in society. What Babasaheb Ambedkar had envisaged for the Republican Party of
India (RPI) had failed to materialize. The post-Ambedkarite movement had begun to decline in
the 1960s due to the ulterior motives of the Republican Party leaders – and today the party has
become an object of ridicule. Instead of concentrating on RPI’s growth, its leaders helped
strengthen the Congress party. The Congress party thus became more arrogant and exploitative.
In the rural areas, it was Dalit Panthers who tried to stem the atrocities that were being inflicted
on the Dalits. There was a growing consciousness among the Dalit masses that there was a group
and an organization to protect them. Even today, when Dalits in villages face atrocities, people
yearn for the resurgence of a movement like the Dalit Panther.
This wish in people’s hearts can be seen as the greatest recognition of the Dalit Panther among
the masses. Even when the movement spread from Maharashtra to the rest of the country, it
never spread itself too thin. Social scientists have realized the importance of the Dalit Panthers.
Even today, both Indians and foreigners seek to understand and analyze the history of the Dalit
Panther. Researchers and students are still mesmerized by its history. The militant activism of the
Dalit Panther is one that needs to be revived, hence the need to translate this work into Hindi and
English. I published this history of Dalit Panthers in Marathi on 6 December 2010, under the title
Dalit Panthers. It was well received by Marathi readers and activists.
Read more: Excerpt from a chapter on the brutal caste atrocity that eventually led to the
downfall of chief minister Vasantrao Naik

Since researchers and scholars worldwide studying the Dalit Panther movement seek information
from us, I felt there was a need to publish this material in Hindi and English. Angela Davis from
the Black Panther, USA, on her visit to India on 16 December 2016, had expressed her desire to
me for an English translation of Dalit Panthers, for the benefit of the African-American brothers
and sisters involved in their struggle in the USA.

...I hope that the activists and researchers who benefited from the Marathi edition of Dalit
Panthers will find the English translation equally rewarding.
India has over 180 million Dalits. A crime is committed against a Dalit every 15 minutes. Six Dalit women are raped every day. Over the last
10 years (2007-2017), there has been a 66% growth in crime against Dalits. Further, data from the National Crime Records Bureau on which
the Supreme Court based its recent judgment that sought to protect public servants and private citizens from arbitrary arrests under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, show that the rape of Dalit women has doubled in the last 10
years. The figures represent only a tip of the iceberg since most Dalits do not register cases for fear of retaliation by higher castes. Even if a
case reaches court, the most likely outcome is acquittal due to caste biases at every stage.

Why the dilution?

Strangely, Justices A.K. Goel and U.U. Lalit in Kashinath Mahajan, adopting ‘purposive interpretation’ and invoking Ambedkar on societal
fraternity, have diluted the stringent provision of denial of anticipatory bail in the SC/ST Act. The judgment gives no prominence to caste
atrocities and ignores untouchability, which is still prevalent. The mischief that Parliament wanted to address too was ignored by the court. In
the Statement of Objects and Reasons of the Prevention of Atrocities Act, Parliament had clearly noted that when Dalits assert their rights,
vested interests try to terrorise them. Accordingly, keeping in view the special nature of crimes against Dalits, anticipatory bail had been
excluded. A cursory glance of crimes made punishable under the SC/ST Act would explain why. Moreover, constitutionality of this exclusion
had been upheld by a five-judge bench of the apex court in Kartar Singh, which Justice Goel noted in passing.

The decline in the conviction rate for crimes against Dalits has created an impression that this may be driven by false filing of cases. But data
from NCRB do not seem to support this contention. In fact, the share of false cases under the SC/ST Act has declined over time (2009-2015).
The conviction rate too has in fact improved — from 23.8% in 2013 to 28.8% in 2014. Why it dropped in 2015 after the Bharatiya Janata Party
came to power has to be probed. But comparing conviction rates of hate crimes with that of ordinary crimes is neither rational nor reasonable.

What is the message?

Moreover, low conviction rates show poor investigation and incompetence of prosecution. Witnesses routinely turn hostile in such cases. We
have low conviction rates in terror crimes as well, but will the court similarly dilute stringent provisions of terror laws? If there is concern
about the ‘presumption of innocence’ of the accused, the protection of anticipatory bail should be extended to the accused in all cases and
under all statutes.

As far as facts of the case in hand are concerned, the court is absolutely right that an adverse entry by non-SC officers in itself as to the
character or integrity of the Dalit employee or routine denial of sanction of prosecution in good faith may not amount to a crime under the
SC/ST Act. But then in this case the accused was indeed granted anticipatory bail. He had come to the apex court after the high court had
refused to quash criminal proceedings against him. The high court rightly noted that in spite of possibility of misuse of the SC/ST Act, its penal
provisions cannot be faulted as it would send the wrong signals to the downtrodden. The apex court has indeed sent wrong signals.

The court has deviated from the established judicial opinion on the subject. The Supreme Court had clearly said that anticipatory bail
provision for the first time was introduced in 1973 and it is merely a limited statutory right and not part of right to life and personal liberty
under Article 21.

Justice Goel’s judgment has given too much space to the arguments in favour of those accused of offences against Dalits. He has quoted
judgments from the Gujarat High Court at length. Gujarat, incidentally, has a low conviction rate under the SC/ST Act.

Only three small paragraphs (27, 28, 29) have been devoted to arguments in favour of the provision. Even the government arguments were not
considered worthy of more than one paragraph. The government did not put its best foot forward. But why should we be surprised?

In any case, as for the case in hand, Section 22 of the SC/ST Act already protects public servants from prosecution if they acted in ‘good faith’.
But now even a First Information Report is not to be registered without preliminary inquiry. Moreover, even after the registration of FIR, the
accused cannot be arrested without written approval of the appointing authority. No FIR can be registered against anybody without permission
of the senior superintendent of police.

The judgment will have a chilling effect on the already underreported crimes against Dalits. The government must go for a review.

Faizan Mustafa is Vice-Chancellor, NALSAR University of Law, Hyderbad. The views expressed are personal
A crime is committed against a Dalit every 15 minutes. Six Dalit women are raped every day.
Over the last ten years (2007-2017), there has been a 66% growth in crimes against Dalits.
Further, data from the National Crime Records Bureau (NCRB) on which the Supreme Court’s
March 20 judgment is based itself shows that rapes of Dalit women have doubled in the last ten
years. NCRB data also says that chargesheets were filed in as many 78% cases, which means the
argument that false cases are being filed out of ‘vengeance’ is flawed.

Though shocking, these figures are only the tip of the iceberg of the actual number of incidents
since most Dalits generally do not muster enough courage to register cases for fear of retaliation
by the higher castes. Even on relatively rare occasions in which a case reaches court, the most
likely outcome is acquittal due to caste biases at every stage of investigation and trial. Due to
these biases, Dalits, the poor and the minorities are over-represented on the list of death rows.
Studies have shown a similar pattern in respect of black convicts in the US.

Strangely, Justice Adarsh Goel and U.U. Lalit adopting ‘purposive interpretation’ and quoting
B.R. Ambedkar’s speech on the importance of the word ‘fraternity’ in the constitution’s
preamble have diluted the stringent provision of the SC/ST (Prevention of Atrocities) Act.
Ambedkar wanted fraternity because of religious and caste conflicts.

In the Indira Sawhney case, the Supreme Court used the word ‘fraternity’ to justify the
reservation policy. Giving a new dimension to ‘fraternity’, Justice Goel has observed that
“interpretation of Atrocities Act should promote constitutional values of fraternity and
integration of the society. This may require check on false implication of innocent citizens on
caste lines.”

What non-Dalits or upper castes should do to promote fraternity is not clear from the judgment.
Rather, it casts aspersions on Dalit victims saying that they file fake cases either out of
vengeance or due to the greed of monetary compensation. This is contrary to Section 15 of the
PoA which specifically mandates that a victim is to be treated with “fairness, respect and
dignity”.

In the Subhashchandra Mahajan judgment of March 20, 2018, the court looked a little
uncomfortable with the provisions of the PoA when it said that the legislature never intended the
Act’s use as an instrument to blackmail or wreak vengeance. Law should not result in caste
hatred. The court without mincing words, said that “PoA should not result in perpetuating spread
of casteism which adversely impacts societal integration and constitutional values.” The court
did not appreciate that the PoA Act had to be enacted in response to caste hatred, which is the
single-most important factor behind divisions in our society.

We have low conviction rates in terror crimes as well. False terror prosecutions, too, have
destroyed hundreds of innocent lives but will we similarly dilute stringent provisions of those
laws as well? The decline in the conviction rate for crimes against Dalits has created an
impression that this may be driven by filing of false cases. But data from NCRB does not seem
to support this contention. In fact, the share of false cases under the PoA Act has declined over
time (2009-2015). The conviction rate, too, has improved from 23.8% in 2013 to 28.8% in 2014.

In any case, comparing the conviction rate of hate crimes under PoA with that of ordinary crimes
is neither rational nor reasonable. The court made its intention of diluting the PoA clear when on
the basis of selective analysis of crime in India data, as highlighted above, and a few judgments
from Gujarat, Tamil Nadu and Maharashtra high courts, it said it in so many words that “we have
seen working of PoA in last three decades and its abuse has been judicially acknowledged.” A
few judgments cannot be substitutes of authentic empirical research.
The genesis of the Act

Crimes against SCs and STs are fundamentally hate crimes that demonstrate an extreme form of
discrimination and prejudice. Accordingly, the Rajiv Gandhi government had enacted the much
needed Scheduled Castes & Scheduled Tribe (Prevention of Atrocities) Act, 1989 in furtherance
of the abolition of untouchability and equality provisions in the constitution.

The Statement of Objects of the Bill explicitly stated that “despite various measures to improve
the socio-economic conditions of the SCs and STs, they remain vulnerable. They are denied a
number of civil rights. They are subjected to various offences, indignities, humiliations and
harassment. They have, in several brutal incidents, been deprived of their life and property.
Serious crimes are committed against them for various historical, social and economic reasons.”

Parliament also noted that when Dalits assert their rights, vested interests try to cow them down
and terrorise them. The Supreme Court completely ignored this harsh reality and got carried
away by the argument of non-Dalits who are accused of committing crimes against Dalits.

Keeping in view the special nature of crimes against Dalits in Section 18 of the PoA Act,
parliament laid down that the beneficial provision of anticipatory bail under Section 438 of the
Code of Criminal Procedure, 1973 will not be available to an accused under the PoA Act. The
constitutionality of the exclusion has been upheld by the Supreme Court. Similar exclusion is
also there in a number of other statutes. The constitutionality of such exclusion in TADA
(Terrorist and Disruptive Activities (Prevention) Act) was upheld by a five-judge bench of the
apex court in the Kartar Singh case, which the March 20 judgment has noted just in passing.

When a smaller bench goes against judgments of a larger bench or draws a different inference
from such judgments, a more detailed analysis of the larger bench judgment is required. Yes,
courts may read down a statutory provision but only in appropriate cases and with very sound
arguments. The mere possibility of misuse of the provision is not a valid ground to go against the
legislative intent. In case of PoA, Parliament has clearly highlighted reasons for enacting this
special law.

The Supreme Court has deviated from established judicial opinion on this subject. It has clearly
said that the anticipatory bail provision for the first time was introduced on the recommendation
of the 41st Law Commission in 1973 and is merely a statutory right and not part of the right to
life and personal liberty under Article 21 of the constitution. It was not there in earlier Code of
Criminal Procedure (CrPC). Thus, anticipatory bail is not a fundamental right.

A few state amendments to Section 438 of the CrPC also exclude anticipatory bail in concerned
states. Anticipatory bail has to be an exception and that’s why the parliament has laid down that
it can be granted only by the sessions court or high court. Accordingly, in some cases, the
Supreme Court had refused to grant to bail even to those who had termed someone as Harijan
and Dhobi.

Justice Goel’s judgment is largely quoted from earlier judgments and he has given too much
space to arguments in favour of those accused of offences against Dalits. He has quoted at length
some judgments of the Gujarat high court. On Tuesday, too, there was a matter in the Supreme
Court against the grant of anticipatory bail given by the Gujarat HC to a builder under the PoA
Act.

The Chief Justice of India did not stay the order but merely issued a notice. Interestingly, Gujarat
is the most notorious state in terms of low conviction rate under the PoA and that’s why
shameful incidents like Una happened where the perpetrators were not fearful of law and,
therefore, courageously video-recorded their hate crime and made it viral.

The conviction rate in crimes against SCs

The conviction rate in respect of crimes against SCs in Gujarat is six times lower than the
national average – 3.4% – while the national average is 28.4% i.e. one conviction for every eight
in the country. Against STs, it is one against 21 cases – 1.8% against the national average of
37.9%. The Gujarat model on this issue is really bad.

Even today any assertion of rights by Dalits leads to backlash from the higher castes resulting in
mass kilings, gang rapes and putting Dalit houses on fire. Credit: PTI

Only three small paragraphs (27, 28, 29) or less than one-and-a-half pages have been devoted to
arguments (in the March 20 judgement) in favour of the provision. Even government of India’s
arguments by the Additional Solicitor General were not considered worthy of more than one
paragraph.

It is common knowledge that rightist ideology is against the poor, women, minorities and Dalits.
The withdrawal of criminal cases in the Muzaffarnagar riots and the University Grants
Commission directive to implement reservation taking the department/centre as unit and delay in
payment of SC/ST scholarships are the latest examples of this. This ideology favours capital
punishment and has always opposed the rights of the accused – all in the name of victims. But in
case of SC/STs, rightist ideology is more interested in protecting the accused.

Interestingly, in the very first line of the latest judgment, after noting the arguments, the court
unequivocally asserts that the power to issue appropriate orders or directions for enforcement of
fundamental rights is part of the constitution’s basic structure. Thus, the intention of judges was
clear at the very outset that in spite of the explicit provision in PoA, they were going to issue
directions making even registration of FIR under PoA hugely difficult and dependent on
preliminary inquiry. Precedents about the law-making powers of judges have also been cited. It
declared that the “court cannot adopt passive or negative role of bystander if violations of rights
is observed”.

It is heartening to see the court so committed to civil liberties. Its privacy judgment has been
widely applauded but the real test will be the Aadhaar judgment. No one can contest Justice
Goel’s observations that “liberty of one cannot be sacrificed to protect another.” But then the
history of exploitation and systematic discrimination of Dalits by others cannot be negated either.

Likely impact

Observations like the “Atrocities Act cannot be converted into charter for exploitation or
oppression by unscrupulous persons or by police for extraneous reasons” will mean that victims
of atrocity crimes will now think twice before filing cases because neither will an FIR be filed
immediately nor will the perpetrator be arrested. It is strange that the court did not realise the fact
that for the underprivileged, registration of an FIR itself is a huge challenge as police officers
routinely refuse to do so. The apex court had to pass several orders making the registration of
FIR mandatory.

True, the learned judges have explicitly said that exclusion of anticipatory bail is to be applied in
genuine cases, not false ones, as law has to protect the innocent and punish the guilty. True, the
court has raised a pertinent issue that in some other laws restrictions on bail applies both to
anticipatory as well as regular bail but not in PoA under which the very same court may grant
regular bail immediately after arrest. But that does not mean that parliament really wanted to
give anticipatory bail in offences under the PoA Act. Once a person has been arrested and police
in its interrogation has found no case against him or found the complaint as false, the accused
should certainly get regular bail.

Taking judicial activism forward, Justice Goel has again laid down guidelines though the
statutory provision against anticipatory bail is crystal clear. Similar guidelines issued by him few
months back in complaints of cruelty were meant to protect the perpetrators of crimes against
women. A bench headed by the CJI within months expressed doubts about the correctness of
those guidelines and observed that the job of a judge is not to legislate.

Such judicial creativity was, however, not shown by Justice Goel to protect the rights of Hindu
women to inherit ancestral property in Prakash vs Phulwati (2016) in Karnataka high court,
which had given retrospective operation to the Hindu Succession (Amendment)Act, 2005. But
the court in the second part of its judgment, though no Muslim woman was before it and the case
was not about Muslim law, gave a strange direction for the filing of suo motu PIL to examine
discriminatory provisions of Muslim Personal Law. This PIL eventually led to the progressive
triple divorce judgment of August 22, 2017.

Moreover, examples of earlier guidelines issued by the court clearly show that through the
guidelines the court had been trying to protect helpless and hapless citizens, such as the homeless
requiring night shelter during chilly Delhi winters, victims of trafficking of women and children,
child malnutrition etc.

In other cases like Vishakha, court issued guidelines for the protection of victims of sexual
harassment at the workplace because there was no statute dealing with it and thus the court tried
to fill the gap. For instance, on Tuesday, a three-judge bench led by the CJI has issued detailed
guidelines in respect of khap panchayats as there is no specific law dealing with honour killings
and other regressive judgments passed by them. But the issuance of guidelines to undo
legislative intent or the clear provision of PoA is clearly beyond judicial powers and an
encroachment of legislative domain.

Moreover, here we are dealing with the accused of crimes under the Atrocities Act. These
atrocities against Dalits are rooted in our caste system. Let us look more closely at the nature of
these crimes. A 2016 amendment to PoA has made certain acts reflecting caste discrimination
and prejudice as crimes. These offences do need a special dispensation and, therefore, an
ordinance was brought in by the Congress government to amend PoA. The BJP government is to
be appreciated for getting it converted into an Act.

Do we put inedible or obnoxious substance into the mouths of non-Dalit citizens? Do we dump
excreta, sewage, carcasses, obnoxious substances in the premises or neighbourhood of non-Dalits
etc.? Do we garland with footwear or parade naked or semi-naked non-Dalits? Do we forcibly
remove clothes, tonsure head, remove moustaches of non-Dalits? Do we compel non-Dalits to
dispose or carry human or animal carcasses or to dig graves or indulge in manual scavenging?
Do we obstruct the performance of official duties by a non-Dalit panchayat official? If the
answer to these questions is a big ‘no’, then denial of anticipatory bail to those accused in these
offences is based on sound reasoning.

Do we refuse to work or hire or deal with non-Dalits in pursuance of economic boycott? Do we

corrupt or foul water or any source of water of non-Dalits? Do we prevent non-Dalits from
wearing footwear, new clothes or prevent them from riding a bicycle or motorbike? Do we
prevent non-Dalits from taking out a wedding procession or mounting a horse during the
procession? Do we stop or obstruct non-Dalits from entering places of worship? Due to the
special nature of these crimes, monetary compensation has been provided under the Act.
Similarly, though the country does not have a witness protection law, under PoA the victim,
informant, dependants of victims and witnesses have to be protected. Similarly, the presumption
of innocence to some extent has been reversed under Section 8 of the PoA. Similarly, special
courts have been established.

Gujarat is the most notorious state in terms of low conviction rate

under PoA and that’s why shameful incidents like Una happened. Credit: Screengrab

Just like racism, untouchability is based on ‘descent’. Former Prime Minister Manmohan Singh
was candid enough to equate it with apartheid. Extreme marginalisation and persecution is a
harsh reality of Dalit life even after 70 years of our independence. The reality is that even today
any assertion of rights by Dalits leads to backlash from the higher castes resulting in mass
kilings, gang rapes and putting Dalit houses on fire. TV anchors sitting in Delhi and Mumbai
may not appreciate the gravity of untouchability as Dalits have almost no representation in print
or electronic media, which are fully under the control of upper castes.

A 2006 empirical research by Ghansham Shah and Sukhdev Thorat of 565 villages across 11
large states found widespread practice of untouchability in a significantly large number of
villages. Moreover, there is a burden of a ‘stigmatised ethnic identity’ that even better-off and
educated Dalits continue to live with. Justice Kannan was trying to raise those concerns in the
higher judiciary but in over-enthusiasm he went overboard and had to be punished for contempt
of court.

As far as the facts of the case in hand are concerned, the court was absolutely right that an
adverse entry by non-SC officers in itself as to the character or integrity of a Dalit employee or
routine denial of sanction of prosecution may not amount of a crime under PoA. But then, in this
case, the accused was indeed granted anticipatory bail. But his petition for quashing criminal
proceedings under Section 482 was rejected by the high court, which clearly noted that in spite
of the possibility of misuse of PoA, its penal provisions cannot be faulted as it will send wrong
signals to the down-trodden and backward sections of society. Unfortunately, the apex court has
preferred to send wrong signals.

The court looked more interested in protecting the public servant, as what should be just and
reasonable procedural safeguards for public servants accused of an offence under PoA, was
framed as a major issue. The court clearly said that public servants as well as others may be
blackmailed and, therefore, safeguards are necessary. It said that “by way of rampant misuse
complaints are largely being filed against public servant/ judicial officer/quasi-judicial officer
with oblique motive for the satisfaction of vested interests”. This is too loaded a statement
against complainants of atrocities and overlooks the power dynamics of a caste-ridden Indian
society.

A long list of officials qualify as public servants under Section 21 of the Indian Penal Code. The
court ignored the fact that in anticipating the hostile attitude of public servants against Dalits,
Section 4 of PoA casts a specific duty on them to record an FIR as per the information given and
assist a complainant in every possible way. Non-registration of FIR is punishable with minimum
punishment of six months’ imprisonment, which may even extend to one year. In fact, Section 22
of PoA already protects public servants from all their actions taken in good faith and no suit or
prosecution or other legal proceedings can be initiated against any public servant if he/she was
acting in good faith.
The court rightly emphasised presumption of innocence as the first principle of classical criminal
law and said mere allegation by the victim cannot negate it. The court is also right in observing
that arrest can only be made if there is ‘credible’ information and a police officer has ‘reason to
believe’ that an offence has been committed. Certainly, arrest should not be mechanical and
under our general law there is no mandate under law to arrest an innocent person.

True, the court has said that exclusion of anticipatory bail should be limited to only genuine
cases and it should be considered inapplicable where no prima facie case is made out. If an
allegation is motivated, such exclusion will not apply. But then PoA is a special law and
protection of general law may be legitimately denied under a special law. In case of conflict
between general law and special law, it is the special law that prevails. In any case, as noted by
the court, the Supreme Court itself has held in Hema Mishra’s case that a constitutional court is
not barred by anticipatory bail in spite of statutory bar.

Members of the Dalit community are detained by police during a protest in Mumbai in January.
Credit: Reuters/Danish Siddiqui

To safeguard innocent persons against false implication and unnecessary arrest, the court has
held that FIR is not to be filed without preliminary inquiry which must be completed within a
week and report must give reasons when permission is given for registration of FIR. To further
extend protection to those accused of crimes against Dalits, the court went on to say that even if
preliminary inquiry is held and a case is registered, arrest is not necessary. Moreover the
guidelines further state that no public servant is to be arrested without written permission of
appointing authority and in the final stroke of compassion for the accused of crimes against
Dalits, the court extended the benefit to other citizens as well and now they too cannot be
arrested without the written permission of the district SSP.

The decision will surely have a chilling effect on reporting of already under-reported crimes
against Dalits. The court has not only gone against its own earlier judgments but also re-written
Section 18 of PoA which excluded anticipatory bail, and Section 154 of Code of Criminal
Procedure which mandates that FIR is to registered in every case of cognizable offence.

On Monday, Ram Vilas Paswan’s Lok Janshakti Party filed a review petition in the apex court.
The parliamentary standing committee on social justice, which supervises the implementation of
PoA, is also likely to recommend a review of this judgment. The BJP government has no choice
but to support a review as opposition parties in one voice are opposing this judgment. The BJP
had already paid a heavy price for RSS supremo Mohan Bhagwat’s statement on reservation
during the Bihar elections and it would not like to lose Dalit support in 2019. Bahujan Samaj
Party leader Mayawati, now in alliance with Samajwadi Party in Uttar Pradesh, is also capable of
converting this into a big issue.

The author is Vice-Chancellor NALSAR University of Law, Hyderabad. The views expressed are
personal.
This is an OPEN LETTER, written by an anonymous undergraduate student at Nalsar University
of Law about her Campus Sexual Assault. It was published with the consent of the victim. This
is her story:

I was sexually assaulted by my best friend.Coming out and saying this is one of the hardest
things I’ve ever done. I mean, I’m a strong person who never ever thought this could happen to
me. This only happens to other people; how could I be the victim? I occasionally drink alcohol,
yes. I love spending my free time chilling at the local dhaba with my friends and watching
movies. I wear dresses and have male friends. I’m like any other regular girl you would meet. I
could never be a victim. Right? Right? Wrong.

I ought to start from the beginning. I went through a break up after a very long and very serious
relationship last October and naturally, I was a mess. That was when “He” happened. I can no
longer think of him as anything but “Him”, someone I thought I knew, someone I trusted, but
someone who is now nameless to me because I genuinely can’t comprehend his identity. At a
time when I thought I couldn’t trust anyone, I found him always there. I began to trust him, to
depend on him and to feel so safe with him that at times I lay my head on his chest just to hear
his heart and calm down in my worst moments. I had a connection that I couldn’t define but was
just so thankful to have. I would and did do anything for him. He was my closest friend and
confidante. As our friendship grew, so did my closeness to him.

One day, during the winter break in December last year, he kissed me. It was so sudden and
unexpected and it left us both confused and apprehensive about what this meant for us. We both
were clear that we weren’t romantically interested in one another, but sooner or later, a physical
relationship took off, continuing right into the next semester beginning in January.

I truly wasn’t romantically interested but also did not consider it a hook-up. I believed I had far
too deep an emotional connection with him for that. He wanted to take it further physically and I
truly did consider it over time. The funny thing is, he was always the guy who never seemed
interested in girls, never drank, never smoked and has an impeccable image to all those who
know him or of him. And yet, here we were.

The only problem was, he never seemed to be able to make up his mind. One day, I was his
closest friend, the next day, I was someone he wanted to be intimate with and the third, I was
someone he didn’t even want to accidentally brush his finger or shoulder against. I was confused
but he was my best friend so I did my best to understand and fix it. We had several fights and
several long talks. Things improved. Then one night he called me out of the blue and told me that
he didn’t care about me. I was shattered. I remember sobbing uncontrollably and begging for a
reason. I didn’t even know what I did. I went to him the next day and begged for us to put
whatever happened behind us, and he casually agreed that we could “try.” I never realized how
trapped I was.

He was perfect. He was that guy who always seemed “too good”. He was, and still is perceived
as that proper boy with the classic traditional Indian morals of being a good boy, and never
dating girls. He never touched a drop of alcohol. Never smoked a cigarette. He was the poster
boy for “decency” and never did an immoral thing in life…or so everyone thought.

Then one day, several weeks later around mid-March, I happened to have too much to drink and
revealed that I was confused and upset about his hot-and-cold attitude towards me, especially
regarding our physical relationship and apparently the impression conveyed was that I felt he had
‘used me’. “Him”, the boy with the perfect image and the apparent undying respect for women.
The next day, I met him early in the morning once I had sobered up and we both cried and I
apologized for ages, trying to get him to believe I didn’t mean it that way. It was the first time I
saw him cry and I was disgusted with what I had done. We ended up kissing. That is when it
happened.

Writing it out makes it sound so dramatic. The thing is, it was so real when it did happen and yet,
so unreal. He began to kiss me fiercely and grabbed my wrists. I remember being terrified at this
sudden use of force and being pushed up against a wall. At this point I began to feel frightened
and fight back. I attempted to push him off and tried to speak. I remember thinking he was strong
and being genuinely scared. I kept repeating no, I don’t want this, I really don’t, this is wrong. I
told him to let go of me because he was hurting me and he did but then said he wanted me to
make him ejaculate. I must’ve looked horrified but he said if I didn’t help him, he would do it on
his own. I remember just sinking to the floor and curling up, begging him to stop. He refused.

After a point, I just sat there and kept chanting to myself that it would be over soon. He
demanded to know if he could ‘come on me’ and I just sat there shaking. He turned away and
finished and I continued to stay blank. Eventually he finished, but that strong girl that existed
somewhere inside of me wouldn’t let me accept defeat. I wanted to talk to him about what just
happened, but he told me that he didn’t want to talk because he felt like he would “faint from the
hunger’. That was it. That was the end of it. It was over.

I locked myself up in the room that day and couldn’t even get myself to cry. My mind didn’t
want to accept it. He refused to talk to me all day. All he said is he needed time to deal with
‘what I had said’. Later that afternoon, I was fortunate enough to have a friend come and find out
what had happened. She spoke to me and helped me realize what had happened was wrong; I had
refused to accept it up to that point. I messaged him and told him which he asked me to talk to
him. I met him and he seemed sorry and told me that if I truly felt there had been force involved,
he could not be friends with me. He also said that he hadn’t actually touched me after I told him
not to and that I was ‘doing what he expected me to do, blame everyone else when all he had
asked for was time’. At that point, I perhaps ought to have stuck by the fact that I knew force had
been used. But I couldn’t. I just couldn’t fathom another emotional ordeal. I couldn’t handle the
fact that not only had this happened, I might have to deal with losing him. As perverse as this
sounds, I just couldn’t. I hadn’t yet sorted it out in my mind, heck I hadn’t even stopped being
shocked. I retreated into a shell. Blanked out. I actually comforted him. It sickened me, but I did.
I refused to use the word sexual assault, even to myself. I denied it. I buried it.

All I knew is that every time I thought of what happened with him, I felt dirty. After that, I
wouldn’t let anyone be intimate with me, physically or emotionally, even as a friend. I never let
anyone touch me again. I shut myself off from the world. Weeks and weeks full of self-
contemplation, blaming and doubting myself, and feeling alone and trapped.

Months later, after rounds of counseling and the support of some wonderful friends, I slowly
came to realize that what had happened was not my fault. For a long time, I told myself that it
wasn’t a big deal. I didn’t want to accept that my best friend, my safe place was actually where
I’d been harmed. That my trust had been played like this. That I actually kissed him on the cheek
that very night the morning after it had happened because he asked me to and I couldn’t think
straight. I blamed myself for saying it was okay. I hated myself because I couldn’t stop feeling
dirty. I couldn’t get the sounds of my head no matter how hard I tried. I hated myself for being in
denial.

Till one day, I was lucky enough to have a group of some wonderful people help me deal with it,
to face it, to know no matter what, this was not my fault. They were people who saw it through,
right from helping me realize that it really was sexual assault, to encouraging me and supporting
me through this coming out.
This open letter took a lot of thought and a lot of building up my courage. I feared backlash, I
feared people speculating, stories being twisted, blame being transferred. To so many people,
this might be gossip. But to me, it is the nightmare I have to live with every single day. Things I
know I cannot deal with on top of dealing with what has happened. But I also know that I was
lucky enough to get support and I want there to be openness, for people to know that there is
always a space to talk about it. As one of my friends quoted from Harry Potter (yes, it was one of
my coping mechanisms to re-read the entire series), ‘help is always given to those who ask for
it’. I have written from the heart because this was one the most unexpected and traumatizing
things to happen to me. It may not have been rape, but it was sexual assault and I accept that
now. This was a person whom I had a completely different perception of, someone everyone has
a completely different perception of. He is a vociferous speaker for womens rights and
respecting them, a huge advocate of consent. He doesn’t drink. Doesn’t smoke. Doesn’t date
girls. He is so very perfect. And he is the person I have to see every day in the classroom,
knowing what he did, scared of speaking out for all the self-doubt and fear and just denial.

I was scared because I know it can be twisted to where I am the one to blame, the one who is
bringing this up after time has lapsed now just to cause trouble because we aren’t friends
anymore; that I want to ruin his life. Whatever. What about MY life? I know it can be construed
and misconstrued in a million different ways. I will never say that through our entire dynamic, I
haven’t made mistakes. I have, plenty of them. But I have now come to have the confidence in
myself to know that none of it warranted what he did to me and I certainly did not deserve to feel
that my mistakes overshadow this to the extent where I asked for it, because I didn’t ask for it.

This is no movie where I end by saying I’m not scared anymore and I walk off strong and happy
into the sunset. I’m still scared, I’m still coping. His last message to me ended with ‘I am out’. I
may not be walking off a new person into the sunset, but I do know that while a major part of my
life, this is not my whole life.

He cannot and will not be the center of all my thoughts. I speak out now because though I am
scared, I’m also proud of myself. I’m going to take it one day at a time. I want people to know
that this can happen to anyone. Sexual assault happens in ways that you would not even imagine,
it could have happened to you. It can happen with your boyfriend or girlfriend, your professor, or
even your best friend.

It can happen when you least expect it to. It can happen, and you don’t even realize that it
happened. I want people to know that there will always be the fear of those who will be against
you. There will always be a fear of people not believing you, and people spreading rumors about
you and limiting your story to worthless gossip.

But know that there will always be people who will stand up for you, and those are the people
who matter. Maybe this coming out of sorts will generate talk for a while and then soon be
forgotten. But if it reaches out to even one person, helps them realize that you can believe that
you will always have support, I will have succeeded in reaching one step closer to my peace. I
for one will continue to have faith in people and my journey to that sunset. And I hope that I will
be able to continue holding my head up high.