Home > Archives (2006 on) > 2009 > August 2009 > Can Money Compensate Scheduled Tribe Victims for Rape?

Mainstream, Vol XLVII, No 37, August 29, 2009

Can Money Compensate Scheduled Tribe Victims for Rape?

Monday 31 August 2009, by Vasudha Dhagamwar

In our earlier study of Scheduled Caste victims in Uttar Pradesh we had drawn attention to the fact that compensation was regarded as the end of the case. [“Can Money Compensate for Rape” by Vasudha Dhagamwar, Mainstream (August 8, 2009)] We had raised doubts about the end beneficiary of the money paid ostensibly to the victim.1 We had noted the victim’s need for rehabilitation and we also had also seen the victim’s need for overall support from her community. The focus of our study in Madhya Pradesh had therefore shifted to seeking answers to such questions. As we shall explain below, we chose Madhya Pradesh for demographic and linguistic reasons.

The Scheduled Caste and Scheduled Tribe [Prevention of Atrocities] Act 1989 came into effect in 1995 when the Central Rules for its implementation were passed. That is why in the study for Uttar Pradesh, spanning the years between 1991 to 1994, the State Rules (made for the Protection of Civil Rights Act), giving each victim five thousand rupees, applied. In 1995 the Central Rules were framed and gazetted in April of the same year. Rules have to be gazetted in order to come into force. The Central Rules increased the amount of compensation to the rape victim to fifty thousand rupees. The amount was to be split into two equal instalments. The first would be paid after the medical report; and the second after the accused had been convicted. Under the Rules each State had to frame its own rules, while keeping within the larger content and spirit of the Central legislation. From the quantum of compensation given in different years it appears that until the State Rules were gazetted, even the Central Rules would not apply. The old State Rules, if any, would remain applicable. It was all very confusing.

The Act further provided for Special Courts and Special Public Prosecutors, whose time would be devoted exclusively to the trials. It also permitted the victim to appoint a lawyer of her own choosing, should she not be satisfied with the Special Public Prosecutors. Her lawyer’s fees would be paid by the legal aid committee. Travelling expenses, which included fares and allowances, were to be paid to the victim, a family member accompanying her and the prosecution witnesses. Travelling expenses were to be paid for travelling to place of investigation and of trial. Similarly, maintenance expenses, at not less than the minimum agricultural wage per day, were required to be paid to all such persons. The victim’s medical expenses were also covered.

A team of three women researchers took up the field based project. They chose Madhya Pradesh (the part that later became Chhattisgarh) for their study. The reasons for choosing Madhya Pradesh were similar to the reasons for studying the Scheduled Caste cases in Uttar Pradesh. First of all, we needed a State with a large number of Scheduled Tribes and also with a sizeable non-tribal population. So the North-Eastern States were out. Secondly, we needed a Hindi speaking area so that researchers could speak directly with the people. Rajasthan and Madhya Pradesh met both requirements. However, Madhya Pradesh was way ahead. According to the Census of 1991, the Scheduled Tribe population of Madhya Pradesh was 23 per cent of its total population; Rajasthan came second with 12.4 per cent. Even in absolute numbers Madhya Pradesh had a larger tribal population of 15.3 million while in Rajasthan it was 5.7 million. In registered cases for rape too Madhya Pradesh had the dubious distinction of coming out ahead. For the years 1994 and 1995 Madhya Pradesh recorded over 200 cases annually. While in Rajasthan the figures were less than fifty in either year. It is, of course, possible that in that latter State the figures were ‘fudged’ and the situation was much worse. But as the data went, we selected Madhya Pradesh. Before proceeding any further let us look at the law on compensation in Madhya Pradesh.

The Legal Position in Madhya Pradesh

As the requirement of the Central Rules to the Atrocities Act, the Madhya Pradesh Government brought in the Madhya Pradesh Anusuchit Jati va Janjati (Akasmikata Yojana) Niyam in 1995. Akasmik means sudden or unforeseen. The English translation of the title would be Scheduled Caste and Tribe (Emergency Plan) Rules. We refer to them as the Niyam. They came into effect from March 1996. The State Rules in effect till then dated from 1993. Those Rules had been framed under the Protection of Civil Rights Act of 1955. Under them a rape victim of SC or ST communities was entitled to receive the lumpsum of Rs 10,000 when the First Information Report (FIR) was filed.

Our study covers the years 1995 and 1996, one year before and one year after the Niyam came into effect. The Niyam provided that Rs 50,000 would be the minimum that would be paid to the rape victim.

Choice of Districts

The team then closed in upon Bilaspur division because of our contacts there. The team wanted one district with a high incident of rape of ST women by non-ST men and another with a low incidence. Bilaspur division comprises of three districts: Bilaspur, Surguja and Raigarh. Overall 53.7 per cent of the population in Surguja district was tribal. On the other hand in Bilaspur district only 23 per cent of the people were tribal, which was coincidentally the State average. Oddly enough, in Surguja district, where tribal people had absolute majority, the incidence of rape was higher. The following figures were collected from the Adivasi Jan Kalyan Cell (or AJKC) which was based in Bhopal, the State capital.

Yearwise Incidence of Rape in the Two Districts

District 1994 1995 1996 Total
Surguja 12 20 15 47
Bilaspur 8 2 3 13

The intention was to cover 50 per cent of the cases. But once the team reached the field they ran into difficulties. They could not get the FIRs of the 1994 cases and decided to concentrate on 1995 and 1996. Even for those two years figures in the AJKC, Bhopal were incomplete. On the other hand for the newly chosen years more cases came to light in the police stations. A few young victims had been married off in faraway villages, and an interview would disclose their past to their in-laws. Lastly some villages were inaccessible due to the rainy season. All this played havoc with the sample size.

The team noted that the information they needed was split amongst five or six departments. For the First Information Reports they visited not only the regular police stations, the Special Court, and the Tribal Development Wing. In addition they also went to the single AJK Police Station for the entire district. To find out about the compensation etc. they went to the Antyavasi Samiti and in Surguja, to the Tribal Development Wing. The information was not collated in any one place. One appreciates that the government administration is not run for the convenience of researchers. But when we think of ordinary people running from pillar to post, the need to centralise information becomes paramount.

In Uttar Pradesh the team had sifted through the First Information Reports or FIRs. They could not follow up all the FIRs. In Madhya Pradesh it was the other way round: they found more cases than FIRs.

Cases and FIRs

Break-up of Cases Surguja Bilaspur -
- 1995 1996 1995 1996 1995 1996
Followed-up cases 11 11 3 3 14 14
FIRs 7 8 2 3 9 11

The total number covered by the team was 28 cases. From the FIRs, interviews with the victims and other government records we could find out when the rape was reported to the police. In 13 cases, the largest number, the FIR was filed the next day. In four cases, it was the same day. In four, it was between two to three days. Three FIRs had been filed inside a week, in two cases inside a month, in one after a month and in one case the FIR had been filed after seven months. We shall return to this case. The later it is, the less the chances of finding evidence. When asked about the delay beyond twentyfour hours in reporting, we got a variety of answers. Thus twelve-year-old Parvati said that she was raped in the man’s house. We could see that his family was not going to help her or even send her to her parents. Sixteen-year-old Anju said that she had been gangraped by six youths in daytime, while she was out grazing her cattle in the forest. They physically prevented her from going home till late in the afternoon. Some victims or their relatives were threatened with dire consequences should they open their mouths. They took time to muster their courage. Santara was a twenty-year-old deaf-and-dumb young woman. The team talked with her father. He was a sharecropper. The man who raped her was his landowner. He threatened Santara’s father saying he would take away the entire produce if the father went to the police. The father waited till the crop was harvested. The medical report said that Santara was seven months pregnant.

Sanction and Payment of Compensation

The team followed up 28 cases in all. Of the 14 cases of 1995, they could find FIRs in only nine cases, of which two were in Bilaspur district and seven in Surguja district. But as the chargesheets were filed in all 14 cases, the FIRs clearly existed and all victims were entitled to receive the compensation of Rs 10,000. Yet the compensation was paid to only nine victims. We must point out that they were not necessarily the cases in which we found the FIRs. Of the remaining five victims the situation of Tulsi Bai was very difficult to understand. It had been a case of gangrape, involving four men and it was only case that had ended in conviction. Still she did not receive the compensation.

Ten victims, whose FIRs were registered in 1996, were paid compensation Three of those cases were registered before the Niyam came into effect; so they too came under the 1993 Rule. All three received the sum of Rs 10,000 in a single instalment after the FIR was filed. The remaining cases came under the Niyam. It meant more money, but it involved more paperwork. As per the Niyam, the victim was entitled to receive Rs 10,000 in cash after her medical examination. The remaining money would be held in a joint account in a post office with the Assistant Commissioner, Tribal Development. The money would be held in a monthly income scheme or any other fixed deposit scheme and the victim would be paid the interest. Despite the Niyam, however, three women in Bilaspur district were paid the entire sum of twentyfive thousand rupees in cash. The Niyam was strictly applied in Surguja. Another proviso was that if the doctor did not record a finding of rape then the entire sum of Rs 25,000 would put in the joint account until the trial concluded with a conviction. That happened to Santara, the deaf-and-mute daughter of a sharecropper. As several months had elapsed, the medical report could only be ‘no visible signs of intercourse’. Her money is in that joint account.

Would anyone like to predict the chances of an ordinary citizen, let alone a tribal woman, getting close enough to the Assistant Commissioner sahib to get his signature? How many palms would have to be greased?

Still another problem is created by the provision in the Niyam that fifty thousand rupees was the minimum sum that would be paid. It is actually a dehumanising provision, although at first glance it may appear to be kind and generous. It means that various officials have to find time to sit together, apply their minds and weigh whether that particular victim’s experience was sufficiently bad to merit more money, and if so how much. In the meanwhile she gets nothing. Tulsi Bai is probably one such woman; despite several attempts even the researchers could not discover anything about the amount of her compensation from the Department of Tribal Development. Yet the police could disclose that all the four accused had been convicted and each one had received a seven-year sentence. Her case is all the more notable because that was the only conviction in all the twentytwo cases.

Allowances and Expenses

The Central Rules as well as the Niyam provide for several allowances. Travel expenses (fares) and travel allowance, and a daily allowance are provided for travelling to the places of investigation and of trial. There is provision for medical expenses. A separate maintenance allowance is also mentioned. However, after recognising their need for financial assistance on a daily basis, the Niyam does not put the money within their reach. One would expect on-the-spot payment for the expenses incurred. The place of occurrence is usually not far from the victim’s home. But the court can be quite far. In tribal areas it usually is. One would expect disbursement in the court premises at the end of the hearing. The Niyam requires disbursement of the allowances and expenses by the District Magistrate, or a Sub-Divisional or an Executive Magistrate, within three days of the expense being incurred. Nothing in India moves within three days. It would mean repeated self-financed trips to the officer. The overall impression we received was that people spent their own money for travel, food and medical treatment. One family had even sold a plot of land to meet their expenses.

At least the Magistrates sit in the same town as the court. In Surguja district the Block Education Officer or BEO dispensed the money. The BEO’s office is not in the same town as the court. He sits in the block headquarters. Many persons would have to travel in a different direction—at their own cost—to collect the money. Even the police were sympathetic about it. Secondly, on every visit the victim would have to explain who she was and why she claimed the money. It does not require much imagination to visualise the looks she would get and the whispers she would hear.

The need to produce a jati certificate, the inability to act without a middleman and the sheer distances are other hurdles. The Public Prosecutor is not always as helpful as he should be but sometimes it is quite the reverse. Postal service to remote villages is quite irregular and the victim may not find out that the amount is waiting for her. This is what happened to Uttara. Neither she nor her family knew anything about her compensation.

Rehabilitation: Policy and Practice

Under the Akasmikata Yojana Niyam of 1995 there are a few provisions for rehabilitation such as education, self-employment, monthly subsistence allowance, but they are not meant for victims of rape. Meera, Anju and Parvati, all minors, had been forced to stop going to school. They needed admission to hostels under the Chhatravas scheme. Parvati had abusive parents. Uttara actually had to live on the rapist’s land. She needed somewhere safe to stay and a safe workplace. So did Nirjo Bai who had been abandoned by her disapproving husband. She too needed somewhere safe to stay. But the Niyam did not cover them. To my lasting regret, we failed to help these girls and women.

Social rehabilitation is further complicated by the widespread custom of Jati Milan. A woman who is polluted by intercourse with a non-tribal even if she is not a willing partner—is immediately outcast until she is purified. This entails a feast for the panches of five villages and elders of her own village. A Jati Milan has always been an expensive affair. We were told that it costs around three to four thousand rupees. It would come as no surprise if it had become more expensive after the compensation amounts became known. In many applications for speedy relief the need to provide this feast was specifically mentioned.

We have mentioned Uttara more than once. It is time to tell her story. She lived in Bilaspur district. This young unmarried woman was totally ostracised by everyone, including her family. So she had nowhere to live. The village then asked the rapist to house her. When the team was inquiring for her tactfully, one man corrected them on many details including her name. The researchers were curious to know how he knew so much about her. ‘I know,’ he said, ‘because I raped her.’ He was a married man and lived with his wife and children in the same village. He built a hut for her on his land. The team recorded that he had easy access to her whenever he wished. When the team discovered that the first amount of compensation had been sanctioned for Uttara, they made a special trip to tell her. But she was working somewhere outside the village, and they could not meet her. After the Jati Milan she will be able to live in her community.

Yet parents avoid Jati Milan if they can because it is a public admission that their daughter had been raped. If she is unmarried, it ruins her chances of marriage. They can do it by concealing the rape. If at all they file a complaint and the case drags on, their choice is between publicising the incident by repeated visits to the court or turning hostile. They frequently choose the second option, especially if they have succeeded in arranging the girl’s marriage in a distant place, where no one knows about her past. Gunjo Bai’s parents shifted out altogether to a distant area where no one would know their guilty secret.

A victim who cannot escape out of the area has a tough time. In an otherwise formal report the team wrote that twelve-year-old Parvati from Bilaspur district cried her heart out while narrating the incident to them. She said that the people in her neighbourhood teased her by calling her dhoban (as the man who raped her was a dhobi) and they made fun of her. Her own mother abused her and accused her with getting a man to satisfy her desires. Her mother and step-father frequently beat her up. Parvati was very keen to continue her studies. She said with a pathetic pride that she had been a good student. But the Niyam did not provide that for her.

The Jati Milan is one example of our sweeping practice of respecting the customs and culture of minorities—which includes the weaker sections —going horribly wrong. With or without the Jati Milan, the lives of all these girls and women had changed forever. Their victim status was burned into them for the rest of their lives. The custom is like a sword at their throats. The Jati Milan does not really help the victim although it lifts the ban from the rest of the family.

Who uses the Money?

Apart from the large expense of Jati Milan, some money is still left over from the first cash payment. As with our first study, we found it was the men in the family who controlled it. Parvati’s account is in the name of herself and her mother. She complained that her step-father had bought himself a watch, some clothes, a quintal of rice and was planning to buy himself a bicycle. Parvati was afraid to protest as she feared more beatings and also that she would be thrown out of the house. But she could see she would get very little of the money. Nineteen-year-old Kamalpatti lived with her paternal uncle as her father had remarried. The uncle had used up all but twentyfive hundred rupees for himself and his family. He had not even bought a sari for her. The story was no different with older women. We must mention that the money is also frittered away in bribes to middlemen. One woman had become so used to it that she even offered one to the team.

Is Compensation of any Help?

We have been driven to conclude that it is not. Most of the time the victim does not even see the money. It does not make her life better. It may even make it worse. If her menfolk want her to claim any assistance, she must endlessly repeat her story. As has happened, an occasional false case is filed by vindictive male relatives. Then the whisper goes around that all cases are false, no respectable woman would ever say she was raped. This is a common belief among mofussil lawyers and policemen even in non-tribal areas. Here there is compensation to be got. Now the attitude is, ‘they only want the money, you know’. The rape is repeatedly flaunted in her face by her own people and the operators of the system There is no forgetting, there is no healing.

A Comparison of the Two Studies

While comparisons are odious, my overall impression is that the tribal people are treated much more shabbily, even insultingly, by officials. The FIRs illustrate this point. The team was particularly horrified to read the voyeuristic and obscene language used to describe the act of rape. The researchers pointed out that the women or girls did not use such words when they talked together. Those words are read out to the victim in the court and she asked to confirm them. This happens several times. Even in a trial in camera there are at least four to five men present. They are the judge, his clerk and the two lawyers and the ubiquitous peon. One can only imagine her humiliation. Secondly, their own community is much harsher towards them.

Although Gandhiji did mention of upliftment of the Scheduled Tribes in his 18-point Constructive Programme, the main focus of his struggle for social justice had been eradication of untouchability. More explicably, but with equally less justification, Dr Ambedkar’s attention was also mainly centred on the Scheduled Castes. The Scheduled Tribes were in the category ‘also ran’. Routinely, almost mechanically, we too speak of the Scheduled Castes and Scheduled Tribes in the same breath. Under the Constitution too there is the office of the Commissioner for Scheduled Castes and Scheduled Tribes. Yet, the two groups of communities are quite different from each other. The Scheduled Tribes are not forest dwelling Scheduled Castes. By thus clubbing them together we have done grave injustice to them. The current Act is no exception. The tribal people can cope much less with the state’s formal system. They need specific help. Our research made it painfully clear that unless the official and public attitude towards the Scheduled Tribes changes, and even more important, unless they themselves are better able to deal with the system, the laws will be of little use to them.

The points made in the article on the Scheduled Caste victims in Uttar Pradesh bear repetition. Monetary compensation must not be the focus of state action. Monetary assistance must be given quickly and discretely. Efficient investigation, speedy trial and severe sentences would do more for the victim in real terms. She and her family also need social rehabilitation, which is a difficult, lengthy process, involving change in deeprooted prejudices. The two studies brought home to us another stark reality. It is not only the middle class that penalises the rape victim. Rape is one crime for which the victim is punished by all communities, and not only in India. Jati Milan is not unique; different purification rites exist in other tribes such as the Gonds and Santals. The lynch justice of the OBC panchayats is too well known.

Only one question remains to be asked. Now that Chattisgarh has become a tribal State, will Parvati, Uttara, Anju, Santara, Tulsi Bai have safer lives? Will some research scholars take up the studies where we left off?

Footnote

1. One would like to avoid the word victim; but of the two other choices ‘women and girls’ is much more cumbersome and ‘female’, like the rapist, reduces her to only her sex.

The author is an independent scholar. She was the Founder Executive Director of Multiple Action Research Group (MARG), New Delhi. She writes on socio-legal issues.

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