- J. Daniel Elam*
11 September 2019 will mark the thirtieth ‘birthday’ of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The ‘Atrocities Act’, as it has been commonly called since, was enacted in 1989, and the rules it laid out commenced in 1995. Two significant amendments, in 2015 and 2018, continue to make the Act a vibrant legal document. The Act is noteworthy because it articulates a vision for eradicating discrimination and oppression along the lines of caste, which, in turn, would make it possible for Dalits to be more fully incorporated into Indian society. The Act, and the subsequent research it called for, revealed the gross insufficiency of previous laws that had purportedly protected Dalits and lower castes from violence and discrimination.
This article offers tentative notes towards a continued analysis of the Act from the vantage point of its thirty-year lifespan: what has been the effect of the Act, and how can these effects be measured? What genealogies can we illuminate to situate the Act as part of a larger and longer history of state-based rights assurances?
The first section addresses the two simultaneous demands (punitive and affirmative) of the Act and issues that arise from that double adjuration. The second section identifies crucial social and legal genealogies of the Act, drawing largely the work of Dr. B.R. Ambedkar. The final section deals with the Act’s relationship to other laws and declarations that make similar demands in order to provide clarity about the social and legal concerns that may arise moving forward.
I.
We generally understand the Atrocities Act as intervening in two distinct ways: in the first instance, it is punitive (against those who would cause harm or injury to Dalits); in the second instance, it is affirmative (in order to provide Dalits with better economic, social, and political representation). The Act proposes a set of institutions and authorities to ensure both types of interventions. The Act suggests that these interventions are interrelated and concomitant, which pose a set of potential concerns.
What constitutes an ‘atrocity’? Here, the Act is fairly clear. First, ‘atrocities’ are distinct from ‘crimes’ on the basis of their extraordinary inhumanity and cruelty. Atrocities, rather than simple crimes, are unique to caste oppression because caste hierarchies have produced economic, social, and political dependency: ST/SC persons are most often in involuntarily dependent and subordinate positions with non-ST/SC persons. Consequently, atrocities are actions done by non-SC/ST persons to SC/ST persons, though not necessarily on the basis of caste.
Firstly, the Act demands that atrocities be treated punitively. Preventing access to public resources is an atrocity against scheduled tribes and castes. Non-consensual or forced acts (forced labour, sexual assault, humiliation, etc.) against scheduled tribes and castes are atrocities. Destruction of Dalit-owned property, as well as denial of Dalit property ownership, are atrocities. Actions that demonstrate overly aggressive prosecution, political disenfranchisement, and economic exploitation are atrocities. The 2015 Amendment defined additional atrocities and broadened the definition of ‘consent’. Under the Act, these behaviours and actions, when demonstrable, are atrocities and therefore punishable offences, and these cases are to be expedited under special courts.
Secondly, and much more vaguely, the Act demands that atrocities be actively prevented. This entails the creation of legal facilities and resources, state-provided enforcement, and allotment of resources for the identification of atrocity-prone areas. Preventing atrocities, in theory, should reduce the number of atrocities committed; the Act thus imagines that, over the course of, say, thirty years, prevention will produce sustained protection for ST/SC persons.
This ideal has obviously and sadly not come to fruition. This is not simply because of haphazard implementation or enforcement of the Act, though poor execution of the Act’s assurances has been a consistent problem over the past thirty years. Rather, at the centre of the Atrocities Act is a fundamental error which the Act’s otherwise outstanding terminology cannot escape. Individual acts that enforce caste hierarchy are indeed atrocious, but even the sum total of these individual acts (even if all of them were demonstrable and reported) would be grossly insufficient to account for a crucial fact: caste is the atrocity.
II.
Caste is the atrocity: all acts committed in the name of its preservation are only iterations of its sustained violence. Even though the 2015 and 2018 amendments expanded the reach of the Act, no single list could possibly account for the myriad ways in which caste oppression is committed and experienced. One explanation is that caste is structural oppression, and therefore is both committed in the form of individual actions as well as in collective inaction. This explanation is mostly correct, and the Atrocities Act rightly recognises this limitation (even if those in charge of its implementation do not). This is why the Act allows for ‘rehabilitation’: in the absence of punishable crimes against SC/ST persons or communities, the state nevertheless has the duty to actively produce the conditions necessary for equality.
The idea that juridical activism is necessary to act both in advance of, and in order to produce, societal change is credited to the work of Dr. B.R. Ambedkar’s. His drafts of the Indian Constitution articulated the necessary relationship between law and society for a properly democratic and independent India. The law must endeavour to produce the necessary conditions for social equality; Ambedkar was deeply sceptical that society could reach this on its own.
It cannot be understated how revolutionary this concept was in 1947, even if Ambedkar would soon identify and challenge the limitations of this socio-legal theory as well. For most of his career, Ambedkar had struggled to render ‘caste’ as a social and political problem. By way of curious allegiances between orientalists, colonial bureaucrats, and caste-Hindu reform movements throughout the nineteenth century, ‘caste’ had been firmly identified as a ‘religious’ problem, and therefore out of juridical bounds. In 1932, M.K. Gandhi made this argument to ensure that ‘untouchables’ were counted as ‘Hindus’, and therefore not granted provisions necessary for equal political representation.[1] Throughout the 1930s and 1940s, Ambedkar repeatedly frustrated Congress Party leaders by insisting that the annihilation of caste was a prerequisite to the demand for national sovereignty. In other words, before India could claim that it deserved to be an independent and democratic state, it first had to become democratic. Ambedkar’s compromise, after independence, was to theorise legal institutions as stop-gap measures until social equality was fully realised.
But Ambedkar watched as the Congress Party chipped away at his radically egalitarian constitution for postcolonial India. By the time of its ratification in 1950, only two articles (15 and 17) significantly reflected Ambedkar’s mission. Ambedkar realised that not only would India fail to secure legal protection against caste oppression, but that even this might not be enough to reconcile Hindu social practices with Indian political ideals. At the final session of the Constituent Assembly in November 1949, he says:
On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality…. In our social and economic life, we shall… continue to deny the principle of one man one value.… How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.[2]
Ambedkar’s tragic prediction is in line with his final act of social and political protest: leading a mass conversion of Dalits to Navayana Buddhism in November 1956. This act of ‘leaving the fold’ was admittedly much quieter than ‘blowing up the structure’, but it nevertheless signalled a distrust, in the final instance, of social change within the framework of legal institutions.[3]
In this sense, the 1989 Prevention of Atrocities Act embodies the spirit of Ambedkar’s thought yet deeply insufficient for its social and political realisation. ‘Caste oppression’ is not reducible to atrocious actions that can be ‘prevented’. Caste is the atrocity which makes these acts possible. Caste as the atrocity cannot simply be prevented; it must be, to use Ambedkar’s evocative term, annihilated. The Act is both necessary and insufficient as a response to crimes against ST/SC persons, but we must analyse how the frameworks of ‘prevention’, ‘regulation,’ and ‘rehabilitation’ have limited our ability to address the full scale of caste oppression. Regulation and rehabilitation are always in response to crimes; and ‘prevention’ (presumably of ‘future crimes’) an insufficient way to describe caste, which is a perpetually occurring crime.
III.
That the 1989 Prevention of Atrocities Act cannot annihilate caste is not grounds for its dismissal; perhaps it is especially on these grounds that robust thought might envision ways of implementing and securing the rights it suggests. But we might also locate the Act within a larger genealogy of human rights legislation, and thereby situate it in its global intellectual context. In this sense, we might read the Act alongside documents like the Universal Declaration of Human Rights (1948), UN General Resolution 260 (1948), and the Geneva Conventions (1949).
These documents, drafted in the wake of World War II, articulate legal norms for the entire world. UN General Resolution 260 and the resolutions produced at the Geneva Conventions establish, in theory, a worldwide regulatory body to prevent and punish ‘crimes against humanity’: genocide, war crimes, and infringements on human rights. International courts, composed of international cooperative nation-states, would produce a world of global adherents to these norms.
The drafters and writers of these resolutions were altruistic, but they were not blindly optimistic about their success. The Nuremberg Trials (1945-1946) had already revealed the limitations of international law as well as the procedural difficulty of punishing crimes against humanity. Hannah Arendt is perhaps the most famous sceptic: ‘banality of evil’ refers not to demonstrable violent or oppressive action, but more often to inaction and quotidian actions.[4] Put in the language of caste oppression: caste is the quotidian atrocity we commit when we aren’t thinking, not simply the violent crime committed when we do.
The implementation of these resolutions, like the Atrocities Act, has been haphazard and uneven. And, like the Atrocities Act, the courts established to rectify injustice are frequently populated with those who have committed similar crimes (if not benefitted from the crimes under prosecution). These resolutions have had, it should be noted, some notable outcomes. Elsewhere, global apathy has rendered them completely useless. On the whole, they fail to secure the protection of those who are at the greatest risk of harm and violence. They certainly fail to secure the protection of those who suffer from crimes for which no one person might be blamed (for example, refugees seeking shelter from climate change catastrophes).
Ambedkar said very little on record about these resolutions. He rarely used the language used in these resolutions, and his conception of ‘human rights’ is idiosyncratic. Ambedkar’s own definition of ‘rights’ – which ‘are concerned with things which other people “ought” to do for [a person]’ – is different from most conceptions. It runs slightly skew to the more mainstream uses of the term, even though he cites the French and American Revolutions as the inspiration for his definition. ‘Rights’, for Ambedkar, are secured socially and interdependently: one cannot have ‘rights’ in this definition, in the absence of others. Ambedkar’s insistence on equality is precisely on the grounds that it demands ‘rights’ as that which one is owed from another (and, subsequently, that which one owes others).[5]
Although he relies on this definition of ‘rights’ (and ‘human rights’) well before the 1948 Universal Declaration of Human Rights, Ambedkar’s interest in ‘rights’ in this sense aligns most closely with this document’s prescribed ideals. Article 1 of the Declaration frames this as: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’. Here, as in Ambedkar’s writings, ‘rights’ entail not simple equality but fraternity (‘brotherhood’). ‘Conscience’, as used in the second sentence of Article 1, is a rough translation from Chinese (‘two-man-spirit’) and was suggested by P.C. Chang as a way to avoid implicitly (and overtly) religious terms. To behave in accordance with ‘conscience’ is to accept one’s own fundamental relationality, and therefore the responsibility to engender equality, with others. In other words, ‘human rights’ are political ideals created on the grounds of a shared social existence.[6]
The Universal Declaration of Human Rights and Ambedkar’s attempted constitutional drafts (as well as his proposed Hindu Code Bill), rely on the same philosophical paradox, which Ambedkar confronted in 1951. We might articulate this paradox thus: political rights/equality exist because rights-bearing subjects are necessarily social, but social rights/equality can only be secured by political intervention. Moreover, because no nation with social inequality can actually imagine what true political equality might look like, all forms of political intervention will be essentially compromised from the start.
Nevertheless, it is too easy to accept dismal nihilism. This is why these post-war declarations and resolutions remain necessary even though they have been poorly enforced over the past sixty years. UN Resolution 260 and the Geneva Conventions do not exist solely to produce normative laws. They exist to assert certain international norms for the creation of legislative norms. As Seyla Benhabib has argued, these documents are forms of international legislature that set the groundwork for universally agreed upon norms. Moreover, they implicitly set the groundwork for universally agreed upon procedures that will make it possible to revise or determine new universal norms in the future. They politically demarcate the boundaries of the socially normative, which, although unenforceable, nevertheless allows for the sustained vision of democracy and egalitarianism.[7] Against the ‘banality of evil’, it articulates not what we should not do, but what we should actively think about doing. ‘To think’ in this sense, does not mean to philosophise abstractly without acting, but rather to demand that our actions be the products of active and conscientious thought.
It is possible (and obviously not incorrect) to identify the 1989 Atrocities Act as the Indian legislative response to these international norms. But it seems theoretically better, and more useful, to identify the 1989 Atrocities Act as an Indian iteration of these international norms. In this sense, the Act is the articulation of the nation’s ideals and norms. This requires us to understand it as a document that articulates norms as the conditions of possibility for normative legislation. If caste is the atrocity we commit when we aren’t thinking, the Act is a demand to think actively about caste. To think actively about caste is to realise how it inhibits thinking conscientiously (that is, thinking as equals with others), and to act in ways that propel us closer to eradicating caste injustice. To properly respond to the 1989 Act, therefore, would not be to simply expand its jurisdiction, but rather to produce localised acts and resolutions to fulfil the social promise of equality by securing, actively and in perpetuity, across all political institutions.
*J. Daniel Elam is an Assistant Professor at the University of Hong Kong.
[1] There are many accounts of the 1932 Poona Pact and Gandhi’s subsequent fast, including those by both Gandhi and Ambedkar.
[2] Dr. B.R. Ambedkar, Collected Works of B.R. Ambedkar, 1216 (Vol. 13, 1949).
[3] Gauri Viswanathan, Outside the Fold, (Princeton University Press, 1998).
[4] Hannah Arendt, Eichmann in Jerusalem, (New York: Penguin Classics, 2006 [1963]).
[5] Dr. B.R. Ambedkar, Miscellaneous Notes in Collected Works of B.R. Ambedkar, 744 (vol. 12, 1949).
[6] For a thorough analysis of P.C. Chang’s ‘translation’, see Lydia Liu, Shadows of Universalism: The Untold Story of Human Rights around 1948, 385-417, Critical Inquiry 40.4 (Summer 2014).
[7] Seyla Benhabib, Another Cosmopolitanism, (London: Oxford University Press, 2006).