In the Khairlanji case, justice is not seen to be done

The Nagpur bench of the Bombay high court outraged Dalit leaders as well as human rights activists across the
country with its recent judgment in the Central Bureau of Investigation v Sakru Mahagu Binjewar & Ors.

The outrage centred on two aspects of the verdict: it commuted the trial court’s death-penalty for the perpetrators of the heinous Khairlanji killings to life imprisonment; and it refused to accept the killings as a caste atrocity.

Whereas the question of commutation, despite the parameters enumerated by the Supreme Court to determine the “rarest of rare” cases, has perforce been reduced over the years to a subjective call by individual judges, the bench’s summary rejection of the applicable provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — the PoA Act — is certainly more questionable.

The PoA Act is a special law aimed at shielding the traditionally downtrodden groups from the tyranny of the high-born. It has been enacted to redress the peculiarly Indian grievance of caste-related exploitation and repression, and also because it is meant to supplement, in appropriate cases, the penal provisions of “general” criminal laws such as the Indian Penal Code (IPC) and Code of Criminal Procedure (CrPC).

By its very nature then, the PoA Act calls for special treatment in accordance with the spirit of its enactment. This entails, at a bare minimum, a hawk-eyed and speedy law-and-order machinery to identify and investigate incidents falling within its ambit, and an equally alert and sensitive judiciary proactively willing to invoke the law and punish offenders as per its provisions when the facts of the case justify its use.

The available evidence in Khairlanji — even that which survived the shoddy police investigation — points without a doubt to a horrific caste-based atrocity.

Nearly 40 upper-caste Kunbi men gathered outside the Bhotmange dwelling at Khairlanji village in north-eastern Maharashtra, and began yelling caste-slurs (the Bhotmanges belong to the Mahar scheduled caste) and allegations that the mother and daughter had falsely implicated some of them in a criminal complaint.

The father escaped, but the mob dragged out the rest of the family — the middle-aged mother, the teenaged daughter and two young sons, one of them blind — and lynched them in full public view with “sticks, bicycle chains, and blows with fists and kicks.” The clincher: the mob kept chanting “Maharana mara” (“attack/beat/kill the Mahars”) as it went about violating the two women and battering all the four victims to a gory death.

The judgment cites two reasons for denying the applicability of the PoA Act to the Khairlanji incident. The first is a mere technicality. The prosecution erred in not challenging the trial court’s acquittal under an IPC section that has a logical nexus with a similar provision in the PoA Act, which could have been readily cured, given the high court’s inherent powers under sec 482 of CrPC to make such orders as may be necessary “to secure the ends of justice.”

The other reason concerns the motive for the killings.

Khairlanji and other High Court judgments on the PoA Act insist that its provisions can be invoked only when and if the prosecution establishes that the accused attacked, or in any way violated the victim, “on the ground” that the latter was SC/ST.

This argument, while being amazingly ignorant of the “multiple-motive” concept in criminology, betrays a mechanical interpretation of the statute.

There may not always be a simple and direct link between the initial intent of a criminal act and the intensity with which it is finally effected. Isn’t it possible — even probable in the Khairlanji instance — that the mob initiated the attack with an intent to punish the Bhotmange women for their allegedly false statements to the police, and then was fuelled by a totally unrelated but no less virulent caste prejudice against SC/STs which intensified the attack into a killing frenzy and consumed other innocents in the Bhotmange family as well?

A fair verdict in Khairlanji could arguably have helped wipe away some of the stigma of upper-caste bias which shadows India’s judiciary. Ironically though, in ruling a blatant act of caste-related barbarism as a murder simpliciter, the high court has besmirched that image some more.

Other ironies riddle Khairlanji and its aftermath: many of the human-rights activists protesting the commutation of the death penalty in the Khairlanji case are otherwise known to be die-hard opponents of capital punishment.

Despite its notoriety after the 2006 Bhotmange massacre, Khairlanji was feted this year by the Maharashtra government as a “dispute-free village” and awarded Rs1 lakh. And by holding that the Khairlanji killings do not qualify as a “rarest of rare” crime, the Bombay high court may unwittingly have admitted that life-threatening atrocities against Dalits are indeed becoming a commonplace!