Events & Issues

New Delhi, 30 March 2018

SC/ST Act

MISTAKE OF FACTS?

By Dr S. Saraswathi

(Former Director, ICSSR, New Delhi)

Nearly thirty years after the adoption of the SC/ST (Prevention of Atrocities) Act, the Supreme Court has come out with a landmark judgement altering the basic structure of the Act, the essence of which has implications to certain other protective legislations too. For, these laws have the potential to reverse offender-victim positions and in some cases help create new forms of crimes in misuse and abuse of protective laws.

In the verdict on Subhash Kashinath vs. State of Maharashtra, the Supreme Court has made a thought-provoking statement that the SC/ST (Prevention of Atrocities) Act 1989 has become an instrument of “blackmail” and is being used by some to exact “vengeance” and “satisfy vested interests”. The Court obviously wants to prevent the persecuted from becoming the persecutors in applying the law. A strange necessity indeed!

The Court’s ruling introduced the provision of anticipatory bail to the accused which was barred under the Act and ruled out automatic arrests pending preliminary police inquiry on complaints of atrocities against SC and ST now mandatory before taking action. It has prohibited the arrest of anyone merely on the basis of a complaint without the permission of the person’s appointing authority in the case of public servants. As for private citizens, there can be no arrest under the Act without the approval of the Senior Superintendent of Police in the district concerned.

Hardly a year back, the Ministry of Home Affairs in its Annual report observed that increase in the number of cases of atrocities against Dalits is a cause of concern and the Act needs to be strengthened. It has been issuing instructions to the police and other authorities to implement the law in letter and spirit. Still, instances of crimes against SC and ST were increasing. According to the National Crime Research Bureau (NCRB), in 2009-14, crimes against SC increased by 40 per cent and against ST by 118 per cent. The number of cases filed was 40,801 in 2016 which was 5.5 per cent increase from the previous year’s 38,670.

The highest number of cases was filed in Uttar Pradesh (10,426) – a quarter of the total number. Highest proportion of crimes was assault on women to outrage her modesty (7.7 per cent) followed by rape (6.2 per cent).

Unfortunately, while the number of complaints are increasing, the rate of convictions remains very low, which has prompted the changes as recommended by the Supreme Court in law. In 2007-16, an average conviction rate in crimes against SC was 28.8 per cent and 25.2 per cent for ST whereas the average conviction rate for all crimes under IPC was much higher at 42.5 per cent.

Failure of the police to register cases, close the cases without completing investigations, failure of prosecutors to vigorously pursue the cases are suspected by some. In some places, the police register cases only after public protests. Others believe that low rate of conviction is the result of failure of prosecution to prove the offence in many cases meaning that they are false cases.

NCRB reports show that in 1915, 15 to 16 per cent of total complaints filed were false and 75 per cent of cases filed resulted in acquittals or withdrawals. In 2016-17, acquittals were more than five times the number of convictions while over 90 per cent of cases were pending.

It raises doubts in some quarters whether the Act intended to prevent crimes targeting individuals and groups of persons classified as SC and ST is being grossly misused to put undue pressure on non-SC castes and involve them in court cases or to wreak personal vengeance which are theoretically possible. Under the 2016 amendment of the Act, mere knowledge of the accused that the victim is SC/ST is sufficient for prosecution. Police found many cases as “false” which is stated in a dignified manner as “mistake of fact”.

It is difficult to dive into the psyche present in instances of real and imaginary cases of atrocities against socially weaker classes. “Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution.  Law should not result in caste hatred”, said the apex court pointing out that the original Act gave scope to rob a person of his personal liberty merely on the unilateral word of the complainant. It found that instead of blurring caste lines, caste hatred was being promoted.

Neither the Supreme Court nor critics of the 1989 Act can be perceived as enemies of SC/ST.  Society has a duty to ensure that any law should be fair and just to all concerned and should not result in denial of fair treatment to anybody in its implementation.

It is common knowledge that the Act is more useful to avoid action against erring SC/ST staff members in offices than in preventing actual harassment of SC/ST in public places. Where people are aware of the efficacy of protective laws, the Act can effectively prevent adverse confidential report or issue of memos for any fault of SC/ST staff for fear of complaints to the Commission and complaints under the Atrocities Act.

But, instances of crimes against Dalit, even arson and rape, particularly in the countryside are often reported. Denial of basic amenities, social segregation, harsh punishments for inter-caste couples involving a Dalit go on. Khap panchayats are active in many places upholding outdated caste discriminations, which now come under the lens.

The nation has suffered under the hierarchical caste system for generations and classes that have lagged behind must certainly be given extra help and attention to get over their backwardness.  However, over-protective legislations need a re-examination to assess their benefits, shortcomings, and procedural difficulties as well as to ascertain unforeseen outcome and unintended developments. After all, social welfare legislations are meant for the good of the entire nation. Putting an end to atrocities against SC and ST cannot be perceived as a sectarian legislation, but one meant for the welfare of all.

Over-protection is indeed counter-productive in many instances of group concessions and collective policies. But, politics and social conditions will not allow any dilution of legal protection once granted. Several political parties including the Congress have immediately started asking the government to file a petition seeking review of the judgement.

Practical hurdles in conducting investigations, recording of statements, and filing charge sheets have to be ascertained. Both lack of support mechanism to pursue genuine cases and instances of deliberate misuse of legislations have to be addressed.

High incidence of violence against SC and ST is indeed disturbing which shows the vulnerability of Dalits despite two major laws on Protection of Civil Rights (1955) and Prevention of Atrocities (1989) and decades of practice of Reservation Policy and scores of welfare schemes.  Rise of middle class among Dalits is a fact and the class is politically active and aware of its importance as a pressure group. This class has an expectation from the government to facilitate rapid advancement. It seems that revision of the Act is equally important as our objective is to be fair to all without assumptions.—INFA

(Copyright, India News & Feature Alliance)