Why Nido’s killer not charged under SC & ST Act?

Dr. Topi Basar

The acquittal of all the accused in Nido Tania case from charges under the SC & ST (Prevention of Atrocities) Act is extremely shocking and unfortunate. The key reasons cited by the trial court are, the failure by the prosecution to establish that it was a case of “racial slur”. Secondly, absence of evidence to show   the victim was a member of scheduled caste or scheduled tribe.  As per the author, the main difficulty is the SC & ST Act does not include “racial offences” in the definition of offences under the Act. The term “race or racial” is not used anywhere in the Act. When the Act does not define racial offences or racial crimes, how can anyone prove racial slur? Calling a person “chinki” is considered derogatory generally but the question is does it amount to racial slur i.e. an offence under the SC & ST Act? Well, not yet. Another biggest loophole in the Act is that the accused should have knowledge about the SC & ST identity of the victim at the time of the commission of the offence. Suppose, the accused convinces the court that he did not know that the victim was a member of SC & ST, he will go scot-free. The Act requires that the offence should be committed because the victim was SC & ST primarily. The onus lies on the prosecution to prove that the offence was committed with this knowledge. It is difficult to prove mainly because one cannot make out by looking at the physical attributes whether a person is a SC or ST. People do not carry around their SC & ST certificate with them all the time.  However, in case of a north easterners who are STs Majority are mongoloids. Thus, in case of north easterners it is easy to know for any prudent person that person is a ST. The author strongly argues that law should be amended to include presumption of knowledge on the part of the accused that he had knowledge of the SC & ST identity of the victim and burden of proof should vest on the accused. Another very unconvincing reason given by the honorable judge of the Trial Court was, “I am unable to find out any provision of law, where all communities residing in Northeast are declared as scheduled tribes or scheduled castes. Even if the deceased belonged to any such caste, this fact was not known to any of the accused.” It is true that there is no such law declaring all communities of northeast as SC or ST and it is not necessary also. The fact being north east has a conglomeration of more than 210 tribal groups who are primarily STs besides many other communities grouped as SC, OBC and General. The hill tribes are predominantly “mongoloid stock” with few exceptions while the inhabitants of valleys and plains are a mixture of several racial stocks, principally, the Mongoloids, the Indo-Aryans and the Australoids or Austrics. The Mongoloids were the first settlers of Northeast India, and the Indo-Aryans and other groups came later and spread out (source, Anthropology).

As per Times of India news report dated November 2, 2014 several instances of misuse of SC & ST Act was cited as a disturbing fact. Such as misuse of the Act to settle personal scores, under section 4 police could be imprisoned for a term not less than six months or up to a year if he does not act on a complaint, so often file cases without verifying the complaint often ending in acquittal; almost impossible to get an anticipatory bail; not only the victim, but anyone who knows about the offence can lodge a complaint etc. But it is pertinent to mention here the National Advisory Council Recommendations on strengthening the Scheduled Castes and Scheduled Tribes Act, 1989 & Rules 1993   to the Ministry of Social Justice and Empowerment identified several lacunas in the implementation of the Act namely-procedural hurdles such as non-registration of cases, procedural delays in investigation, arrests and filing charge-sheets, delays in trial and low conviction rate etc. Few instances of misuse cannot be a ground to nullify the importance of such a special legislation. Such kind of propaganda on misuse of the Act will affect the faith of the people on the law itself. Instead, if there is a low conviction rate and higher acquittal in all the cases filed under the Act, the root causes needs to be found out rather than making assumptions of false cases and lack of evidence. The special laws are enacted to have deterrent effect on the prospective offenders of a crime among other objectives. For instance if the murderers of Nido Tania were convicted under the SC & ST Act the punishment would have been nothing less than  life imprisonment. There is a dire need to make suitable amendment in this law to avert more cases like Nido Tania in future. We cannot ignore the fact that the fight erupted because of the derogatory remark on the hair color (style or whatever) of the victim and calling ‘chinki’ which often reminds me that “every racial comment has a potential to kill someone”. Well, one may argue what has hair color or style got to do with racism? Here, racism is contained in the intent to insult based on one’s biases and prejudices about the racial origin of other person. Conviction of the accused in Nido Tania case under the provisions of SC & ST Act would have sent a strong message to the society. Still not all hope is lost, the verdict should be appealed against and the Government and members of civil society should keep the fight for justice for Nido Tania alive.

 E-mail: topibasar@gmail.com