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RAPE AS AN ATROCITY: ANALYSIS OF

JUDGMENTS DELIVERED BY THE DISTRICT
COURT OF BILASPUR, CHHATTISGARH†
Nikita Sonavane*

I. Introduction

The word ‘Dalit’ comes from the Sanskrit root ‘dal-’ and means ‘broken,
ground-down, downtrodden, or oppressed’; in common parlance, it is
often used to identify those who have been perceived and treated as
the lowest of the low castes in India.1 The term was initially popularised
by Dr B R Ambedkar: he used it as a descriptor for the members
of these so-called lower castes who were seeking political assertion
and emancipation from historically inflicted violence, oppression and
prejudice. Independent India, with the intention of atoning for its past
of caste-based violence and discrimination, also defined the term in the
Constitution2 and laid down a path for the group’s protection.

Though the post-independence era was meant to herald this uplifting,

Dalits remain victims of orchestrated violence. Writer and scholar D
R Nagaraj, in his analysis of this violence against Dalits, identifies two
patterns in the attack against them.3 The first is related to the notion of
justice in a village and the second relates to obstructions faced by Dalits
in asserting their rights. He observes:

‘[W]hen the behaviour of a single individual or a group of Dalits

differs from and challenges traditionally accepted notions of

† This article reflects the position of law as on 3 June 2016.

* The author is a student of Government Law College Mumbai, and is presently studying
in the final year of the Three Year Law Course. She can be contacted at sonavane.
nikita03@gmail.com.
1 —— ‘Who are Dalits?’, National Campaign on Dalit Human Rights, available at http://
www.ncdhr.org.in/dalits-untouchability/ (last visited 3 June 2016).
2 Dalit is often used to refer to the category of Scheduled Castes defined under Article
366(24) of the Constitution of India as castes, races or tribes or parts of or groups within
such castes, races or tribes as are deemed to be Scheduled Castes for the purposes of
the Constitution of India under article 341.
3 Doḍḍabaḷḷāpura Rāmayya Nāgarāj, The Flaming Feet and Other Essays: The Dalit
Movement in India (2nd edn University of Chicago Press 2010).

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70 The Law Review, Government Law College [Vol. 9

morality, norms of social behaviour and rules related to love and

sex, the caste-Hindu society takes it as a grave violation of its
ethics and punishes the alleged offenders severely. The notions
and practices of justice of the rural Hindu society are organically
linked to the ethos of the caste system. Equally important is the
fact that the structure of justice rests on the consensus of the entire
village, which could also mean the unchallenged rule of upper
castes.’4

These notions and practices operate at an intrinsic level of the Hindu

society leading to instances of violence that impact the lives of Dalits
even in present times. In 2012, among the over 260 million people
worldwide who faced extreme forms of discrimination, exploitation,
and violence based on caste, there were nearly 167 million Indians,
16 per cent of whom were Dalits.5 In 2013, there were 39,327 crimes
recorded against members of various Scheduled Castes across all Indian
States, with a conviction rate of 23.8 per cent.6 The number of these
crimes shot up to 47,064 in the year 2014 with a marginal drop in the
conviction rate to 23.4 per cent.7

The first independent Indian government in its bid to move beyond lip
service attempted to use legislation to address this issue. This process
began with the enactment of the Protection of Civil Rights Act, 1955,
which was passed to give effect to article 178 of the Constitution of India.
It proved to be ineffective and subsequently, led to the passage of the

4 Ibid.
5 ——, ‘India: UN Members Should Act to End Caste Discrimination’ (2012) Human
Rights Watch, available at https://www.hrw.org/news/2012/05/14/india-un-members-
should-act-end-caste-discrimination (last visited 3 June 2016). See generally World
Report 2015: India (2015) Human Rights Watch, available at https://www.hrw.org/
world-report/2015/country-chapters/india (last visited 3 June 2016).
6 National Crime Records Bureau, ‘Crime in India 2013: Statistics’ (2014) National
Crime Records Bureau, available at http://ncrb.nic.in/StatPublications/CII/CII2013/
Statistics-2013.pdf (last visited 3 June 2016).
7 National Crime Records Bureau, ‘Crime in India 2014: Statistics’ (2015) National Crime
Records Bureau, available at http://www.ncrb.gov.in/cii-2014/Table%207.1.pdf (last
visited 3 June 2016).
8 Article 17 states: ‘Untouchability is abolished and its practice in any form is forbidden.
The enforcement of any disability arising out of Untouchability shall be an offence
punishable in accordance with law.’

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2017] Rape As An Atrocity 71

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA
Act).9 The PoA Act, for the first time, classified crimes committed against
members of Scheduled Castes and Scheduled Tribes as ‘atrocities’. The
PoA Act and such protectionist laws aim to infuse criminal law with
constitutional ideals of substantive equality by re-signifying previously
stigmatised bodies as bearers of rights.10

Despite the effective mechanism envisaged under the PoA Act, the
conviction rate continues to remain low.11 I seek to understand the
causes of this low conviction rate through my research in the Bilaspur
district located in the State of Chhattisgarh. As per the 2011 census, the
district of Bilaspur is the second most populous district in the State of
Chhattisgarh.12 The total population of the district is 19,61,922, of which
13.8 per cent are members of Scheduled Castes.13 The High Court of
Chhattisgarh is located at Bilaspur. Until June 2009, there was a Special
Court set up in Bilaspur to deal with cases of atrocities. This Special
Court was subsequently done away with owing to paucity of cases,14
and all matters were transferred to the District Court. A separate police
station has been set up and the District Court has appointed a Special
Public Prosecutor to deal with all the matters under the PoA Act. The
Bilaspur district meets all of the procedural requirements laid down by
the PoA Act, thus making it the ideal case study.

In the context of this discourse, the violence against Dalit women

deserves particular consideration as it takes a unique form at this
intersection of gender and caste categories. The gender and caste
discrimination that Dalit women face is the outcome of severely

9 Girish Agrawal and Colin Gonsalves (eds), Dalits and The Law (Human Rights Law
Network New Delhi 2005).
10 Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (Oxford University Press
New Delhi 2014).
11 Supra n. 6 and 7.
12 District Administration, Bilaspur (CG), ‘Statistics: General Information’ (2011) Bilaspur:
The Pride of Chattisgarh, available at http://www.bilaspur.gov.in/Statistics.html (last
visited 3 June 2016).
13 Ibid.
14 The author, as part of the research, conducted interviews with the District Judge and
Special Public Prosecutor of the Bilaspur District Court. Both officials stated this fact
in the course of their interviews.

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72 The Law Review, Government Law College [Vol. 9

imbalanced social, economic and political power equations.15 According

to anthropologist Leela Dube, in her 1996 work Caste and Women,
‘sexual asymmetry (between men and women) is bound up with the
maintenance of the hierarchies of caste’. She writes that the principles
of caste in fact inform the nature of sexual asymmetry in Hindu society,
and simultaneously, the hierarchies of caste are articulated by gender
roles. She notes that in contemporary Indian society, ‘[C]aste is not
dead. Gender is a live issue … the boundaries and hierarchies of caste
are articulated by gender.’16

These observations stem from several statistical studies. A three-year

study of 500 Dalit women’s experiences of violence across four Indian
states shows that the majority of Dalit women report having faced one
or more incidents of verbal abuse 17 (62.4 per cent), physical assault
(54.8 per cent), sexual harassment and assault (46.8 per cent), domestic
violence (43.0 per cent) and rape (23.2 per cent).18 Another study placed
the conviction rate for rapes against Dalit women at under two per cent
as compared to a conviction rate of 25 per cent in rape cases against all
women in India.19 The severity escalates in peculiar cases, such as those

15 All India Dalit Mahila Adhikar Manch et al, ‘Violence Against Dalit Women: Input to
the UN Special Rapporteur on Violence against Women in connection with her visit to
India between 22 April – 1 May 2013’ (2013) International Dalit Solidarity Network,
available at http://idsn.org/wp-content/uploads/user_folder/pdf/New_files/India/2013/
India_submission_on_Violence_against_Dalit_Women_-_SR_on_VAW_India_2013.
pdf (last visited 3 June 2016).
16 Dip Kapoor, ‘Gendered-Caste Discrimination, Human Rights Education, and the
Enforcement of the Prevention of Atrocities Act in India’, (2007) 53 (3) AJER Online
273-286, available at http://ajer.journalhosting.ucalgary.ca/index.php/ajer/article/
view/700/678 (last visited 3 June 2016).
17 Verbal abuse included regular derogatory use of caste names and caste epithets possibly
amounting to ‘hate speech’, as well as sexually explicit insults, gendered epithets and
threats.
18 Aloysius Irudayam S J et al, ‘Dalit Women Speak Out: Violence Against Dalit Women
in India’ (2006) International Dalit Solidarity Network, available at http://idsn.org/
uploads/media/Violence_against_Dalit_Woment.pdf (last visited 3 June 2016).
19 ——, ‘Dalit Women’ International Dalit Solidarity Network, available at http://idsn.
org/key-issues/dalit-women/ (last visited 3 June 2016).

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2017] Rape As An Atrocity 73

of Devadasis,20 who have been victims of societal ostracism and ritualistic

exploitation,21 as 93 per cent of them belong to Scheduled Castes and
seven per cent to Scheduled Tribes.22

The inefficacy of the justice delivery system incapacitates it from dealing

with the matters of Dalit women. Issues of Dalit women have in any
case remained largely unexplored by academia, feminist organisations
and other human rights groups in India. The intersection at which
Dalit women are placed often creates further challenges to making
the issues of violence, especially those of a sexual nature, conspicuous
within the mainstream framework of analysis and action.23 Historically,
too, Dalit women have been perceived as inherently incapable of
embodying honour; hence, the social meaning of rape loses its power
to describe the humiliation that Dalit women face. This stems from
the fact that colonial law24 invested upper-caste women with greater
modesty or honour as compared to Dalit women in the sphere of
judicial interpretation and sentencing. 25 Therefore, the PoA Act, by
naming the outraging of the modesty of or the dishonouring of a Dalit
woman as an atrocity marks a discursive shift and imbues honour or
modesty with a newer meaning with regard to Dalit women.26 Given

20 Devadasis are members of a community of women who dedicate themselves to the

service of the patron god of the temples in eastern and southern India. Members of
the order attended the god by fanning the central image, honouring it with lights, and
singing and dancing for the god, as well as for the king and his close circle, who often
commanded the devadasis’ sexual favours. Because many devadasis engaged in temple
prostitution, both the British and the upper-caste Hindus during the period of colonial
rule came to hold the devadasis in low social regard. The system was outlawed in
1988. Although the number of devadasis subsequently began to decline, the institution
has remained strong—although less open—in the 21st century, particularly in parts of
the south. — ‘Devadasi’ (2015) Encyclopaedia Britannica, available at http://www.
britannica.com/topic/devadasi (last visited 3 June 2016).
21 Maggie Black, ‘Women in Ritual Slavery’, (2007) Anti Slavery International, available
at http://www.antislavery.org/includes/documents/cm_docs/2009/w/women_in_ritual_
slavery2007.pdf (last visited 3 June 2016).
22 Ibid, 3.
23 Supra n. 15, 4.
24 Anupama Rao, ‘Caste, Gender and Indian Feminism’ (2003) Gender and Caste 1–47,
available at http://cscs.res.in/dataarchive/textfiles/textfile.2010-03-11.8248362078/file
(last visited 3 June 2016)
25 Supra n. 10.
26 See Dr. Anand Teltumbde, ‘Khairlanji Verdict Whither the Atrocity Act?’ (2009) Combat
Law, available at http://www.combatlaw.org/khairlanji-verdict-whither-the-atrocity-act/
(last visited 3 June 2016).

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74 The Law Review, Government Law College [Vol. 9

this context, I decided to further focus my research on cases of sexual

violence, specifically rape of Dalit women and the application of the
PoA Act in Bilaspur.

At the outset, in Part II of the article, I have analysed relevant sections

of the PoA Act to determine its application in cases of rape of Dalit
women.

Then, in Part III, I have analysed the 23 judgments delivered by the

District Court of Bilaspur between May 2009 and December 2014.
These judgments were recorded in Hindi and for the purposes of
research and analysis, I translated them into English.27

This article is based on primary and secondary legal research. The

qualitative research methodology has been employed to analyse the
causes of the low conviction rate in Bilaspur. During the process of
collecting judgments the method of quota sampling28 has been used; I
have selected only those judgments that involved a charge of rape of
Scheduled Caste women. The qualitative method of in depth interview29
has also been relied upon by conducting interviews of prosecutrixes in
cases pending at the District Court of Bilaspur.

The subject matter is intended for an audience of victim-survivors,

scholars, researchers, practitioners, local community members, and
policy makers.

Part IV deals with the role of investigating agencies in implementing

the PoA Act to understand the process by which the prosecution’s
case is marred and injustice is consequently aggravated when the
investigating agencies fail to perform their duty upon the registration

27 The author has accurately translated and transliterated the original judgments into
English, to the best of her knowledge and having made every possible and reasonable
effort. Discrepancies, if they arise, may be attributed to the limitations of translation
and language.
28 Natasha Mack et al, ‘Qualitative Research Methods: A Data Collector’s Field Guide’
(2005) Family Health International 360, available at http://www.fhi360.org/sites/
default/files/media/documents/Qualitative%20Research%20Methods%20-%20A%20
Data%20Collector’s%20Field%20Guide.pdf (last visited 3 June 2016).
29 Ibid.

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2017] Rape As An Atrocity 75

of a First Information Report (FIR).30 As part of my research, I sought

information, under the Right to Information Act, 2005 (RTI Act) from the
Scheduled Caste and Scheduled Tribes Police Station located at Sarkanda
in the Bilaspur district regarding the number of complaints registered.

In Part V of the article, I have analysed the Khairlanji massacre, which

is a recent and archetypal instance of shoddy investigation in caste
crimes.

Finally, in Part VI of the article, I conclude by analysing the

amendments to the PoA Act that came into force in January 2016 and
the changes, if any, that these amendments would bring about.

II. Scheduled Castes And Scheduled Tribes

(Prevention Of Atrocities) Act, 1989

A. Object and Definitions

Coming nearly four decades after the Indian Constitution, the PoA
Act has been the most important measure to address the commission
of atrocities against Dalits.31 Unlike its predecessor, the Civil Rights
Act 1955, which only concerned itself with superficial humiliations
such as verbal abuse, the PoA Act is a tacit acknowledgement by the
State that caste relations are defined by violence, both incidental and
systemic.32 However, 25 years later, the PoA Act remains one of the
most underutilised provisions of law especially in the face of rampant
violence against Dalits.

The object of the PoA Act is as follows:

‘An Act to prevent the commission of offences of atrocities against

the members of the Scheduled Castes and the Scheduled Tribes,
to provide for Special Courts for the trial of such offences and for

30 Teesta Setalvad, ‘Caste Crimes’ (2005) Communalism Combat, available at http://www.

sabrang.com/cc/archive/2005/mar05/cover.html (last visited 3 June 2016).
31 Anand Teltumbde, The Persistence of Caste: The Khairlanji Murders and India’s Hidden
Apartheid (Zed Books London 2010).
32 Ibid.

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76 The Law Review, Government Law College [Vol. 9

the relief and rehabilitation of the victims of such offences and for
matters connected therewith or incidental thereto.’33

The PoA Act aspires to address and curb everyday and extraordinary
caste-based violence against the Dalits and the Adivasis. However, when
listing the offences punishable therein, the PoA Act uses the phrase
‘whoever not being a member of a Scheduled Caste or Scheduled Tribe’
to indicate that its provisions come into play when the offender is not
a Dalit or Adivasi. In other words, a Dalit man cannot be prosecuted
for raping tribal women under the PoA Act and such a charge must be
prosecuted under the Indian Penal Code, 1860 (IPC) alone.

Further, the term ‘atrocity’ has not been defined under the PoA Act.
Section 2(1)(a) of the PoA Act merely states that the term ‘atrocity’
means an offence punishable under section 3 of the PoA Act.

B. Atrocities against Dalit Women

Two sections of the PoA Act apply to the offences of assault, rape or
sexual humiliation of Dalit women.

Section 3(1)(xi) of the Act states:

‘Whoever, not being a member of a Scheduled Caste or a

Scheduled Tribe, assaults or uses force to any woman belonging to
a Scheduled Caste or Scheduled Tribe with the intent to dishonour
or outrage her modesty; shall be punishable with imprisonment
for a term which shall not be less than six months or which may
extend to five years with fine.’34

Further, Section 3(1)(xii) of the Act states:

‘Whoever, not being a member of a Scheduled Caste or a

Scheduled Tribe, being in a position to dominate the will of a
woman belonging to a Scheduled Caste or a Scheduled Tribe and
uses that position to exploit her sexually to which she would not
have otherwise agreed; shall be punishable with imprisonment for

33 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
preamble.
34 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
sub-section (1)(xi) of section 3.

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2017] Rape As An Atrocity 77

a term which shall not be less than six months but which may
extend to five years with fine.’35

In order to attract section 3(1)(xii), the sexual exploitation must have

taken place because of the offender’s position of dominance. The term
‘sexual exploitation’ has not been defined in the PoA Act, nor has it
been used in the IPC. These words can, therefore, be interpreted to
have the same meaning as normally accorded to them in the English
language. The word ‘otherwise’ is significant, and clearly indicates that
the exploitation must be with the agreement of the woman, where she
would not have agreed but for the offender’s position of dominance.
This section has been included in the PoA Act to deal specifically
with sexual violence committed in the dynamic of a master-servant
relationship.

Relatedly, for certain offences against Dalits, section 3(2)(v) of the PoA
Act provides for the enhancement of the punishment that is available
under the IPC. This becomes applicable when an offender commits a
crime against a Dalit, but there is no specific section of the PoA Act
addressing that particular crime. The accused is then charged with the
appropriate section under the IPC with enhanced punishment as per
section 3(2)(v) of the PoA Act. This section reads as under:

‘Whoever, not being a member of a Scheduled Caste or a

Scheduled Tribe, commits any offence under the Indian Penal
Code (45 of 1860) punishable with imprisonment for a term of
ten years or more against a person or property on the ground that
such person is a member of a Scheduled Caste or a Scheduled
Tribe or such property belongs to such member, shall be
punishable with imprisonment for life with fine.’36

The rape of a woman is punishable under section 376 of the IPC with
imprisonment of either description that may extend to a term of ten
years or for life. If, however, the woman in question is a member of a
Scheduled Caste or a Scheduled Tribe, section 3(2)(v) of the PoA Act is

35 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
sub-section (1)(xii) of section 3.
36 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
sub-section (2)(v) section 3.

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78 The Law Review, Government Law College [Vol. 9

attracted and may provide for greater punishment. However, crucially,

in order to attract the enhanced punishment prescribed by section 3(2)
(v) of the PoA Act, it is necessary to prove that the woman in question
was raped on the ground that she was a Dalit or a tribal.

This requirement that the rape must have been committed ‘on the
ground’ that the woman was a member of a Scheduled Caste or
Scheduled Tribe gives the judges a wide room to exercise their
discretion. The threshold that must be met for proving the commission
of the atrocity is, therefore, quite high. The burden rests on the
prosecution to prove that the accused not only had prior knowledge of
the victim’s caste, but also that he acted on the basis of such knowledge
in the commission of the crime.

III. Analysis Of Judgments Delivered By

The District Court Of Bilaspur

In this part, I have analysed the 23 judgments delivered by the District

Court of Bilaspur in cases where the accused was charged both with
the commission of rape under the IPC37 and of an atrocity under the
PoA Act between June 2009 and December 2014. Until May 2009, a
Special Court, as mandated by the PoA Act, dealt with cases under
the Act. However, after the Special Court was removed, all cases were
transferred to the District Court, which now performs the functions
of the Special Court. I have, first, analysed judgments delivered in 18
cases wherein the accused have been acquitted under section 376 of
the Indian Penal Code (IPC) thereby leading to an acquittal under the
PoA Act by default. Then, I have analysed six judgments wherein the
accused have been convicted under section 376 of the IPC, but have
been acquitted under section 3(2)(v) of the PoA Act; ie, they were found
guilty of rape under the IPC, but not found guilty of having committed
an atrocity against a Dalit woman under the PoA Act. Lastly, in this
part, I have examined the sole case in which the accused is convicted
under the PoA Act for the atrocity of raping a Dalit woman.

37 The Indian Penal Code, 1860 as it existed before the Criminal Law (Amendment) Act
of 2013 came into force, applies to all of the judgments in this article.

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2017] Rape As An Atrocity 79

A. Cases of Acquittal under the IPC and the PoA Act

This sub-part deals with 18 cases wherein the accused were acquitted
under the IPC and therefore, by default, also acquitted under the PoA
Act, as the accused cannot be found guilty of the atrocity of raping a
Dalit woman if he is not found guilty of the rape in the first place.

These cases have been divided into three sub-categories on the basis of
the patterns emerging in them.
1. Promises of Marriage

The following eight cases have been analysed hereunder:

(i) State of Chhattisgarh v. Raghu alias Raghvendra Vaishnav.38
(ii) State of Chhattisgarh v. Rakesh Yadav and Others.39
(iii) State of Chhattisgarh v. Kamal Yadav.40
(iv) State of Chhattisgarh v. Rakesh Soni alias Mintu.41
(v) State of Chhattisgarh v. Prabhu Panika.42
(vi) State of Chhattisgarh v. Rajkumar Dubey.43
(vii) State of Chhattisgarh v. Vinod Katela Jain.44
(viii) State of Chhattisgarh v. Satish Gupta.45

Most of these cases have nearly identical facts wherein the accused
established sexual intercourse with the prosecutrix by promising to
marry her, but subsequently refused to do so. In these cases, the
prosecutrixes sought to take recourse to section 376 of the IPC, which
lays down the offence of rape, and section 90, which negates consent
obtained under a misconception of fact or fraud. As the prosecutrixes

38 District Court of Bilaspur Special Case (Atrocities Act) No 35/2010.

39 District Court of Bilaspur Special Case (Atrocities Act) No 25/2010.
40 District Court of Bilaspur Special Case (Atrocities Act) No 15/2010.
41 District Court of Bilaspur Special Case (Atrocities Act) No 23/2010.
42 District Court of Bilaspur Special Case (Atrocities Act) No 35/2009.
43 District Court of Bilaspur Special Case (Atrocities Act) No18/2013.
44 District Court of Bilaspur Special Case (Atrocities Act) No 32/2007.
45 District Court of Bilaspur Special Case (Atrocities Act) No 25/2012.

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80 The Law Review, Government Law College [Vol. 9

all belonged to a Scheduled Caste, the accused in all cases were also
charged under section 3(2)(v) of the PoA Act, which provides for
enhanced punishment for certain offences committed under the IPC
against a member of a Scheduled Caste or Tribe, along with sections 3(i)
(xi), 3(i)(xii), or both of the PoA Act, which deal with the assault, rape
or sexual humiliation of Dalit women.

In the case of State of Chhattisgarh v. Vinod Katela Jain, for instance, both
the prosecutrix and the accused were public servants. The prosecutrix
was the subordinate of the accused. The accused invited the prosecutrix
to his house for his daughter’s birthday party. On reaching his house,
the prosecutrix discovered that the accused was alone and that the
birthday party was a ruse to engage in sexual intercourse with her. She
resisted but the accused had sex with her against her will. Following
this incident the accused and prosecutrix began a romantic relationship.
The accused promised to marry the prosecutrix despite already being
married and continued to engage with her sexually on the basis of this
promise.

Since the prosecutrix belonged to the Ganda caste, which is a Scheduled

Caste, the accused was charged under section 3(2)(v) of the PoA Act,
which provides for enhanced punishment for rape. The relationship
between the accused and the prosecutrix was that of a master and a
servant, ie, the accused was in a position to dominate the will of the
prosecutrix. This dynamic should therefore have led to the framing
of a charge under section 3(1)(xii) of the PoA Act, as well. However,
surprisingly, the accused was not so charged by the investigating
authority, nor did the Court frame a charge under this section. The
prosecution, which has the authority to suo moto frame a charge by an
application to the Court, also failed in its duty to do so in this case.
Thus, the accused was never tried under section 3(i)(xii) of the PoA Act.

The accused was acquitted under section 376(2)(b) of the IPC as well as
section 3(2)(v) of the PoA Act. The Court held that section 90, which
negates consent obtained under a misconception of fact or fraud, did
not render non-consensual the sexual intercourse that was initiated
on the basis of the accused’s promise of marriage; thus, there was no
rape. This was held because the prosecutrix was (or should have been)
aware that she and the accused belonged to different castes and that
their families would object to such a marriage. The Court also held

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2017] Rape As An Atrocity 81

that the prosecutrix was a consenting party since she was an educated
woman who was aware that the accused was a married man who could
not have legally married her and yet, continued to engage with him
sexually.

The Court also relied on this rationale in the case of State of Chhattisgarh
v. Satish Gupta .46 where it was held that the prosecutrix, who was
25 years old at the time of the commission of the offence, was well
aware that she and the accused belonged to different castes and that,
consequently, it was not possible for them to marry. It was further
stated that the prosecutrix continued to engage in sexual intercourse
with the accused despite knowing this, and thus, could not be accorded
the benefit of a ‘misconception of fact’ under section 90 of the IPC.
The Court also held that the medical examination proved that the
prosecutrix was habituated to sexual intercourse, and found that she had
engaged in it consensually with the accused. Therefore, the accused was
acquitted under sections 376 and 506 of the IPC as well as section 3(2)
(v) of the PoA Act. The remaining judgments are on similar lines.

In these cases, not only were the accused not found guilty of a caste
atrocity against the prosecutrixes, but the impossibility of an inter-caste
marriage was also used as a ground to acquit the accused of rape. The
Court is in fact upholding the archaic practice of marrying within one’s
own caste. This is a conscionable blunder on the part of the Court and
runs counter to the ethos of the Indian Constitution, and the aspirations
of one of its primary makers, Dr B R Ambedkar, who deemed inter-
caste marriage to be the real remedy to defeat castiest dogma.47
2. Cases of Prosecutrixes Turning Hostile

The accused were acquitted in the following cases as a result of the

prosecutrixes turning hostile and denying the prosecution’s versions of
the incidents:
(i) State of Chhattisgarh v. Purshottam Kumar Soni and Others.48

46 Ibid.
47 Dr B R Ambedkar, Annihilation of Caste (3rd edn Pradbuddha Bhart Pustkalya Nagpur
2011).
48 District Court of Bilaspur Special Case (Atrocities Act) No 26/2012.

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82 The Law Review, Government Law College [Vol. 9

(ii) State of Chhattisgarh v. Jaykumar Sahu.49

(iii) State of Chhattisgarh v. Samarth Lal alias Chotu.50
(iv) State of Chhattisgarh v. Jogeshwar Rathore and Others.51
(v) State of Chhattisgarh v. Jawahar Soni.52
(vi) State of Chhattisgarh v. Ashutosh Singhal.53
(vii) State of Chhattisgarh v. Deepu alias Deepchand.54

A study conducted on the performance of the former Special Courts

set up under the PoA Act found that the prosecutrixes were compelled
to turn hostile due to their economic dependence on the upper and
dominant castes and their state of insecurity.55 It also concluded that
a hostile witness was the main reason for the high rate of acquittals in
such cases.56 During the course of the interviews I conducted with the
prosecutrixes in pending cases in the District Court, I discovered that
they were subjected to immense societal pressure to withdraw their
cases. In one of the cases, the prosecutrix was raped by a man who
lived in the same locality as her. The majority of the people living
in the locality belonged to the same (upper) caste as the accused,
and the prosecutrix was hounded by taunts and snide remarks on a
regular basis. This harassment, coupled with the financial burden that
the litigation imposed on her family, was making it difficult for her to
prosecute the case.

49 District Court of Bilaspur Special Case (Atrocities Act) No 1/2012.

50 District Court of Bilaspur Special Case (Atrocities Act) No 11/2013.
51 District Court of Bilaspur Special Case (Atrocities Act) No 36/2009.
52 District Court of Bilaspur Special Case (Atrocities Act) No 12/2009.
53 District Court of Bilaspur Special Case (Atrocities Act) No 27/2013.
54 District Court of Bilaspur Special Case (Atrocities Act) No 32/2010.
55 Centre for Study of Casteism, Communalism and Law (CSCCL), National Law School,
Bangalore, India, ‘Study on the Performance of Special Courts Set up under the SC ST
Prevention of Atrocity Act’ International Dalit Solidtarity Network, available at http://
idsn.org/wp-content/uploads/user_folder/pdf/New_files/India/Performan_of_courts_
SCST_act-_Study.pdf (last visited 3 June 2016).
56 Ibid.

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2017] Rape As An Atrocity 83

3. Other Cases of Acquittal

The remaining three cases of acquittal did not fall into either of the
preceding categories. In State of Chhattisgarh v. Jaleshwar Kashyap,57 the
Court, while acquitting the accused, noted that the prosecutrix had
earlier filed a rape complaint against one Neil Prakash, and that that
matter had been resolved when the villagers convinced both parties to
enter into a compromise. This history was one of the grounds relied
upon to acquit the accused under section 376 of the IPC and under
section 3(2)(v) of the PoA Act.

Similarly, in State of Chhattisgarh v. Gaurishankar Tiwari and another,58 the

Court noted that the prosecutrix had admitted to having previously had
an affair with a man named Ram Singh, and that she had filed false
complaints in the past against different people. It used this as a ground
to doubt the veracity of the prosecutrix’s statement. This, coupled with
other facts, led to the acquittal of the accused under the IPC.

Finally, in State of Chhattisgarh v. Narendra Kumar Dubey,59 the accused

was acquitted on the ground that the prosecutrix’s testimony was in
some way ‘marred with suspicion’ and that the medical evidence was
unreliable because she was married and thus, habituated to sexual
intercourse. Strangely, the judgment does not reveal a charge framed
under section 3(2)(v) of the PoA Act, which is a necessary corollary in
a case alleging the rape of a woman belonging to a Scheduled Caste.
The accused was acquitted under section 3(1)(xii) of the PoA Act along
with sections 376 and 506 of the IPC.

B. Cases of Conviction under the IPC and Acquittal under the PoA Act

In the following sub-part, I analyse the six cases in which the accused
were convicted of rape under section 376 of the IPC but were acquitted
under the PoA Act. In each case, the Court held that there was no
evidence on record to prove that the prosecutrix was raped by the
accused specifically on the ground that she was from a Scheduled Caste.
This was the basis for the acquittal of the accused in State of Chhattisgarh

57 District Court of Bilaspur Special Case (Atrocities Act) No 31/2010.

58 District Court of Bilaspur Special Case (Atrocities Act) No 5/2008.
59 District Court of Bilaspur Special Case (Atrocities Act) No 27/2009.

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84 The Law Review, Government Law College [Vol. 9

v. Mukku alias Mukesh Yadav,60 State of Chhattisgarh v. Nepal Singh,61 State

of Chhattisgarh v. Rajkumar Patel,62 State of Chhattisgarh v. Chaitu alias
Chaitram,63 and State of Chhattisgarh v. Keshav Lal.64

In State of Chhattisgarh v. Chaitu alias Chaitram,65 an FIR was lodged

under sections 376 of the IPC and 3(2)(v) of the PoA Act. The Court
held that the prosecution did not present any evidence to prove that
the rape took place because of the prosecutrix’s caste. Therefore, the
accused was acquitted under section 3(2)(v) of the PoA Act. The phrase
‘abhiyukt ne prarthiya ko choddh diya’, a vulgar pejorative to describe
sexual intercourse in Hindi, was repeatedly used in the judgment to
describe the act of rape committed. While the official Devanagari
translation of the IPC provides that the term ‘laingik sambhog’ can be
used to describe sexual intercourse, the deliberate use of crude language
by the judge in describing the heinous act of rape begs the question
of whether a judge who displays such coarseness should be considered
capable of dealing with sensitive issues such as rape and caste. It also
raises doubts about the fairness of the trial being conducted in this case.
The absence of the term ‘laingik sambhog’ in describing the act of rape
is conspicuous in all judgments analysed for the purpose of this article.

In State of Chhattisgarh v. Krishna Kumar Sahu, 66 the accused was

convicted under section 354 67 of the IPC for outraging the modesty
of a woman but acquitted under the corresponding section 3(1)(ix) of
the PoA Act. Despite the prosecution being exempt from fulfilling the
threshold laid down under Section 3(2)(v), which applies only to cases
punishable with ten years or more under the IPC, the accused has
been acquitted under Section 3(1)(ix). The accused ought to have been

60 District Court of Bilaspur Special Case (Atrocities Act) No 33/12.

61 District Court of Bilaspur Special Case (Atrocities Act) No 43/09.
62 District Court of Bilaspur Special Case (Atrocities Act) No 18/2013.
63 District Court of Bilaspur Special Case (Atrocities Act) No 23/2009.
64 District Court of Bilaspur Special Case (Atrocities Act) No 12/13.
65 District Court of Bilaspur Special Case (Atrocities Act) No 23/2009.
66 District Court of Bilaspur Special Case (Atrocities Act) No 14/13.
67 Assault or criminal force to woman with intent to outrage her modesty—Whoever
assaults or uses criminal force to any woman, intending to outrage or knowing it to be
likely that he will thereby outrage her modesty, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.

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2017] Rape As An Atrocity 85

convicted by default under the PoA Act owing to his conviction under
section 354 of the IPC. In failing to do so, the Court has committed a
gross error in the application of law.

C. Sole Case of Conviction under the PoA Act

The case of State of Chhattisgarh v. Manik Lal Tandiya.68 is the only case
in which the District Court convicted the accused under the PoA Act.
The prosecutrix was a 30-year-old married woman who, on 16 June
2012, went to the fields for her ablutions. Suddenly, the accused came
to the field, pushed her to the ground and began raping her. When she
screamed, he threatened to kill her. The prosecutrix’s house is located
approximately three–four metres from the area of the crime scene.
When she reached home, she narrated the incident to her in-laws and
her husband. Her husband called the sarpanch following which they filed
a report at the police station.

The Court held the accused guilty under section 376 of the IPC. As
the accused had threatened to kill the prosecutrix when she protested
against the rape, the Court held that the prosecutrix’s consent was
obtained in consequence of such fear, and was covered by section 90
of the IPC.

The prosecutrix was examined, and the medical report stated that the
prosecutrix was habituated to sexual intercourse and had been sexually
active around 24–48 hours prior to the examination. However, the
medical examiner also opined that there were no external signs of injury
on the victim’s body and that the white vaginal discharge could also
be due to a reason other than that related to rape. Therefore, it could
not be concluded beyond all reasonable doubt that the prosecutrix was
raped.

The Court held that since the prosecutrix was a married woman in her
30s, the medical examiner’s opinion was unimportant as no married
woman would put her honour at stake by falsely accusing a man of
raping her. In this case, the Court seems to have adopted a liberal view
by not placing any reliance on the medical examiner’s opinion, unlike
previous cases wherein reports of the medical examiner have impacted
the outcome of the cases.

68 District Court of Bilaspur Special Case (Atrocities Act) No 19/2013.

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86 The Law Review, Government Law College [Vol. 9

The caste certificate presented to the Court stated that the prosecutrix
belonged to the Gond caste, which falls under the Scheduled Caste
category. In his statement made to the Court under section 313 of the
Code of Criminal Procedure, 1973 (CrPC), the accused admitted to knowing
that the prosecutrix belongs to the Gond caste, which is a Scheduled
Caste, and admitted to being a member of the Panika caste, which
does not fall under the Scheduled Caste category. The accused and the
prosecutrix were also neighbours. The Court held on this basis that the
accused was aware that the prosecutrix belonged to the Scheduled Caste
and that the crime was committed because the prosecutrix belonged to
the Scheduled Caste. Thereby, the accused was convicted under section
3(2)(v) of the PoA Act.

As per section 3(2)(v) of the PoA Act, the knowledge of a woman’s

caste must be the ground for the commission of the crime. It is for
this reason that many of the acquittals in the previous sections were
obtained, owing to the difficulty inherent in proving that the rape was
specifically committed because the woman belonged to a Scheduled
Caste. However, there is nothing to distinguish this case from the
previous ones. There is nothing that proves that the accused committed
the crime because the woman was a member of the Gond caste.
The absence of any distinguishing feature unique to this case fails to
explain the rare conviction, when so many other cases with similar
factual matrices resulted in an acquittal. It suggests a certain degree
of arbitrariness in the judgments. It is interesting to note that, during
my interaction with him, I was made aware of the fact that the judge
presiding over this case also belonged to a Scheduled Caste. Some may
opine that this judgment is tainted with personal bias, but one cannot
simply assume the legal soundness of the previous cases to debunk the
irregularity in Manik Lal Tandiya, as the entire lot of them are highly
susceptible to well-conceived criticism. I firmly believe that the arbitrary
and unfettered discretion conferred on the Court in such matters has led
to a failure in the deliverance of justice.

During my interaction with the court staff, lawyers and police, I was
explicitly told several times that the Bilaspur District was devoid of
caste prejudice. It was morbidly ironic to see the same authorities being
entrusted with the responsibility of bringing to justice those responsible
for committing caste atrocities in Bilaspur.

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IV. Role Of Investigating Agencies

Investigating agencies form the backbone of the criminal justice system.

A sound and objective investigating agency is crucial to the process of
securing the ends of justice. Objectivity in the process of investigation is
beleaguered when room is provided for individual prejudices to trickle
in, the possibility of which is amplified in matters of rape and caste.

A. Filing of FIRs

An FIR is the necessary initial step to commence the legal process

when an atrocity takes place or untouchability is practiced, and is also
the primary vehicle that the police use to block Dalits from taking
recourse to the law.69 In 2014, a total of 34,163 charge sheets were filed
for various offences committed against the Scheduled Caste community
across all States, out of which 1929 were in rape cases.70

Amnesty International notes that non-registration of crimes in India is

a general problem. Besides the existent constraints, filing an FIR is in
and of itself a challenge. Political influence over the police and the caste,
class, religious, and gender biases of the police make it particularly
difficult for Dalits to file FIRs, especially against influential upper-caste
individuals.71

The Ahmedabad-based Centre for Social Justice (CSJ) conducted a

detailed study of 400 judgements delivered by the Special Courts set up
in Gujarat in sixteen districts since 1 April 1995. It revealed a shocking
pattern behind the main reasons for the collapse of cases filed under
the PoA Act within Gujarat: utterly negligent police investigation at both
the higher and lower levels coupled with a distinctly hostile role played
by the public prosecutors. In over 95 per cent of the cases, acquittals
had resulted due to technical lapses in investigation and prosecution,
and in the remaining five per cent, court directives were flouted by the
government.72

69 Supra n. 9.
70 National Crime Records Bureau, ‘Crime in India 2014: Statistics’ (2015) National Crime
Records Bureau, available at http://ncrb.gov.in/StatPublications/CII/CII2014/chapters/
Chapter%207.pdf (last visited 3 June 2016).
71 Supra n. 16.
72 Supra n. 31.

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88 The Law Review, Government Law College [Vol. 9

By not registering complaints, or registering FIRs under incorrect

sections of the law, or leaving out the provisions of the PoA Act, police
fail to carry out their official law and order duties as well as abide by
the law.73 The case of Vinod Katela Jain,74 mentioned previously, is one
such instance wherein the investigating authority failed to file a charge
under the relevant section, thereby resulting in an acquittal.

Botched up investigations weaken the prosecution’s case further

especially in cases of rape as an atrocity, where the prosecution is
already reeling under the weight of proving the accused’s intention while
committing the crime as warranted by Section 3(2)(v) of the PoA Act. In
M C Prassanan v. the State,75 while dealing with the case of the rape of a
minor girl by her teacher, the Calcutta High Court noted the following
in its judgment:

‘From such delay in framing the charge under section 3(1)(xii) of

the Act of 1989 it can be easily presumed that neither I.O. nor the
learned Prosecutor nor the learned Sessions Judge nor the learned
Chief Judicial Magistrate who committed the case for trial to the
learned Sessions Judge was aware of the existence of Act of 1989.’

B. Functioning of Special Police Stations

The PoA Act mandates the setting up of separate police stations in

each district to deal with the cases of crimes against Dalits and tribals.76
The district of Bilaspur has a separate police force to deal with these
cases. On 14 December 2014, I requested information on the number of
complaints received and FIRs filed between the years 2009 to 2014 for
all offences under the PoA Act at the Scheduled Castes and Scheduled
Tribes police station, under the RTI Act.

In the year 2013, 2.65 per cent of the total number of rape cases against
Dalit women across all states in the country occurred in Chhattisgarh.77

73 Supra n. 9.
74 Supra n. 44.
75 1999 Cri LJ 998, para 25.
76 Supra n. 9.
77 National Crime Records Bureau, ‘Crime in India 2013: Statistics’ (2014) National
Crime Records Bureau, available at http://ncrb.nic.in/StatPublications/CII/CII2013/
Statistics-2013.pdf (last visited 3 June 2016).

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2017] Rape As An Atrocity 89

The information above reveals that a large number of cases from

amongst the total number of complaints received have been settled
through compromise. In the year 2011, compromise was arrived at in 71
cases of the 272 complaints received by the police station. This further
corroborates the fact that the investigating agencies, besides abandoning
their duties, mete out a procedure that jeopardises the interests of the
victims.

C. PoA Rules

In 1995, the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Rules (PoA Rules) were promulgated. The PoA Rules were
intended as an essential corollary to the PoA Act to ensure its effective
implementation. For instance, rule 11 provides for travelling allowance,
daily maintenance expenses and transport facilities for victims of
atrocities, their dependents, and witnesses.78 In my interactions with
three victims out of the six cases pending at the District Court in 2014,
I discovered that none of them were paid any allowance as mandated
by the PoA Rules. All the victims stated that approaching the judicial
system was in itself a massive step given the stigma they faced. The
financial burden acquired during the course of the trial was cited as
another deterrent in approaching the Court.

V. The Khairlanji Massacre

When discussing the concerns and vagaries of the justice delivery system
pertaining to caste based crimes, particularly rape, it is beneficial to
have some understanding of the abject failure of the system, the legal
safeguards and even the civic society, embodied in the case of the
Khairlanji massacre, which remains one of the most gruesome examples
of caste based violence since Indian independence.

The victims of the violence in this case were from the Bhotmange
family, that consisted of Bhaiyalal Bhotmange (55, at the time of the
carnage), his wife Surekha Bhotmange (40), their sons Sudhir (21) and
Roshan (19), and daughter Priyanka (17), who originally belonged to
Ambagad village, 25 kilometres from Khairlanji. Economic hardship

78 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.

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90 The Law Review, Government Law College [Vol. 9

caused the family to move to Khairlanji in 1989. Being members of a

lower caste, they were subjected to the villagers’ prejudicial harassment.

On 3 September 2006, one Siddharth Gajbhiye was beaten up by 15

people from Khairlanji due to some petty cause. On 16 September
2006, 12 culprits were arrested by the police based on the accounts of
the eyewitnesses: Priyanka, Surekha, Sudhir and Bhaiyyalal Bhotmange.
This did not go well with the criminals. After being released on bail
on 29 September 2006, they incited 40 villagers of Khairlanji, all
belonging to the dominant castes, and planned to attack and murder
Siddharth Gajbhiye and his brother Rajan Gajbhiye. Somehow, Surekha
Bhotmange and Priyanka Bhotmange got wind of this plan and informed
Rajan Gajbhiye.

When the villagers could not find Sidhharth and Rajan Gajbhiye, and
learned that they had been forewarned by the Bhotmange family,
they became furious and turned their hoodlums to the house of the
Bhotmange family with the weapons of bicycle chains, axes, daggers
and sticks. Seeing the approaching mob, Bhaiyalal Bhotmange ran
away. Only Surekha and her children were present at home. Both
the Bhotmange women, Surekha and Priyanka, were stripped of their
clothes. The dreadful photographs show that there was not an inch of
these young women’s bodies that was not marked by bruises.79 Four
members of the Dalit Bhotmange family were brutally murdered.

The FIR (No 56/2006) invoked the following sections of the IPC: 147
(punishment for rioting), 148 (rioting, armed with deadly weapon),
149 (common object), 302 (punishment for murder), and 201 (causing
disappearance of evidence of offence, or giving false information
to screen offender). None of these had any bearing on the crime
committed. The PoA Act was also invoked, but only in its mildest:
section 3(1) (intentional insult or clause intimidation with intent to
humiliate a member of a Scheduled Caste or a Scheduled Tribe in
any place within public view). Crucially, sections 376 (for rape) and
354 (assault or criminal force on a woman with intent to outrage her

79 Brinda Karat, ‘Khairlanji Verdict Blind to Dalit Cause’ (1 August 2010) The Times
of India, available at http://timesofindia.indiatimes.com/home/sunday-times/all-that-
matters/Khairlanji-verdict-blind-to-dalit-cause/articleshow/6242212.cms (last visited
3 June 2016).

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2017] Rape As An Atrocity 91

modesty) of the IPC were not invoked in the FIR.80 Eventually, the
Sessions Court held eight out of the 11 accused to be guilty of the
offences under the IPC and sentenced six out of the eight to death and
two to life imprisement, and acquitted the remaining three. However,
none of the accused were found guilty under the PoA Act.81

In its judgement delivered on 14 July 2010, the Nagpur Bench of the

Bombay High Court commuted the death sentence of all six accused
to life imprisonment. While acquitting the accused under the PoA Act,
the Court held that the entire object had been to take revenge against
Surekha and Priyanka to settle old scores. 82 The judgment took a
parochial view of the motive of revenge, failing to appreciate that the
dimensions of revenge against Dalits are quite different from other cases,
given the caste-ridden nature of our society.

The Khairlanji case is symbolic of all the cases where failure on the part
of the investigating agency and the judiciary to perform their duties has
resulted in the perpetuation of sexual violence against Dalit women. It
is a reminder of the apathetic system in place nationally that render the
PoA Act and other legal frameworks meaningless.

VI. Current Scenario And Its Implications

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Amendment Bill, 2014 was introduced in the Lok Sabha by the Minister
of Social Justice and Empowerment on 16 July 2014. The Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (the
PoA Amendment Act) subsequently came into force on 26 January
2016.83

80 Supra n. 31.
81 State of Maharashtra v. Gopal @ Jitendra 10 (2008) Special Court at Bhandara Special
Criminal Case No 01/2007 (Unreported 24 September 2008).
82 Central Bureau of Investigation through DSP, CBI SCB v. Sakru Mahagu Binjewar
(Original Accused No. 2) and Others (2010) High Court of Bombay, Nagpur Bench
Criminal Confirmation Case No 4/2008 (Unreported 14 July 2010) alongwith four
connected appeals, para 43D.
83 Maneesh Chhibber and Avishek G Dastidar, ‘Govt Notifies Amended SC/ST Law’
(New Delhi 26 January 2016) The Indian Express, available at http://indianexpress.
com/article/india/india-news-india/govt-notifies-amended-scst-law/ (last visited 3 June
2016).

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The PoA Amendment Act classifies new offences as atrocities committed

against Dalits. In section 3(1)(w), the following offences have been
included as atrocities committed against Dalit women:

‘(i) intentionally touching an SC or ST woman in a sexual

manner without her consent, or (ii) using words, acts or gestures
of a sexual nature, or (iii) dedicating an SC or ST women as
a devadasi to a temple, or any similar practice will also be
considered an offence.’84

The PoA Amendment Act also substitutes the words of section 3(2)(v) of
the principal legislation, ‘on the ground that such person is a member
of a Scheduled Caste or a Scheduled Tribe or such property belongs to
such member’, with the words ‘knowing that such person is a member
of a Scheduled Caste or a Scheduled Tribe.’ 85 This, ideally, would
serve to lower the threshold that has to be met by the prosecution for
the accused to be convicted of an atrocity, as it requires only that the
accused know that the person is a member of a Scheduled Caste or
Tribe, not that the act be committed for that reason and on that basis
alone.

It also shifts the burden on the defence to prove the absence of such
knowledge in the commission of the crime. But the existence of a
threshold howsoever low has no place in a legislation that seeks to
eliminate the pervasive evil of caste since the experience of victims-
survivors of caste atrocity with the criminal justice system is greatly
shaped by their (lower) caste identities. This is particularly true for Dalit
women, who not only have to battle societal backlash but also tackle
the callousness of the state machinery while striving to obtain justice in
cases of sexual violence. A threshold such as this one can only be laid
down when we have successfully insulated the criminal justice system
from prejudices of caste and gender.

84 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment
Act, 2015, sub-section (i) of section 4.
85 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment
Act, 2015, sub-section (ii) of section 4.

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The crimes against Dalits are catalysed by social prejudice and their
vulnerability.86 Sexual violence against Dalit women has always been
used as a potent tool to further marginalise the lower castes. Under
the PoA Act, attempts to seek redress were often obstructed by a
complex psychosocial blend of external impositions such as threats of
retaliation and violence by the caste perpetrators (such as threat of loss
of livelihood) and internal patriarchal and cultural understandings.87

Chapter IV A has been introduced in the PoA Amendment Act to

protect the rights of victims and witnesses. In the absence of any
provision for the sensitisation of judges and investigating agencies, this
provision lacks teeth. Judges and investigating agencies are assumed to
be immune from social prejudice. This is clearly fallacious.

A sensitised judiciary and investigating agency are crucial to the

successful implementation of all legislations, especially social legislations
such as the PoA Act that are formulated with the intention of remedying
deep-rooted social biases. Their absence, coupled with the wide
discretion available to judges under the PoA Act, defeats the aim of
protecting Dalits against atrocities. Hopefully, the PoA Amendment Act
will restrict and reduce this exercise of discretion. But without this sort
of sensitisation, this special social legislation will continue to be a mere
paper tiger.

86 Dr Anand Teltumbde, ‘Khairlanji Verdict Whither the Atrocity Act?’ (2009) Combat
Law, available at http://www.combatlaw.org/khairlanji-verdict-whither-the-atrocity-act/
(last visited 3 June 2016).
87 Supra n. 16.

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