Recent news headlines show massive outrage against a Dalit woman named Shalini Maria Lawrence who threatened to use the ST/SC atrocities act against her neighbor [Brahmin by caste] who objected to her installing Wi-Fi by having the cables passed through her house and disconnecting the cables [1].
Elsewhere in the state of Uttar Pradesh, a person named Vishnu Tiwari from a rural area was jailed for nearly 20 years after he was falsely charged and convicted under this very act. He was later set free by the Allahabad High Court after being jailed for nearly 20 years on the grounds of “lack of evidence” being presented to it [2]. Moreover, in the state of Rajasthan more than 40% of all cases that were filed under the above mentioned act were filed falsely and this alarming fact was stated by the police department of the state of Rajasthan [3]. Even though these are isolated cases of misuse of the SC/ST prevention of Atrocities Act there have also been just as many cases of senseless violence against the SC and the ST communities. For example : A Dalit man was murdered by members of his village in the state of Uttar Pradesh by being lynched after he touched the feet of an Idol at the local durga Puja Pandal on September 30th [4]. Now, these instances may lead a person to argue as to why the SC/ST prevention of Atrocities Act is very much required for the protection of the SC and ST communities.
Thus, this leads us to the main question, should the SC/ST prevention of atrocities Act, 1989 be repealed entirely or should it at least be amended and if it is amended then to what extent must it be amended. This Article aims at answering all of these above questions through a thorough analysis of the above-mentioned act itself along with a study of cases and necessary statistics in order to gain an accurate picture and thus find a solution to the problems created by this act while also maintaining a balance with the needs of the SC/ST community.
ALL ABOUT THE SC/ST PREVENTION OF ATROCITIES ACT : WHAT, WHY, WHEN, WHERE & HOW
Background - Atrocities faced by the SC/ST community
The members of Scheduled caste and Scheduled Tribes have been facing various forms of discrimination and in many cases even violence for a very long time both pre Independence and Post independence. According to the statistics placed by the NCRB as of the Year 2021, crimes against members of the SC/ST community have increased by nearly 1.2% and 6.4% respectively when compared to the year 2020 [5]. Moreover on an average 6 dalit women are raped everyday and a member of the Scheduled Caste community is attacked either physically, mentally or verbally every 15 minutes. These statistics are proof in themselves that crimes against people belonging to these communities are not decreasing at all but rather they are increasing every year. Now, the main reason for the atrocities against members of the SC/ST communities is usually discrimination, however it isn’t just caste based discrimination but also status based, hence the people belonging to the SC/ST community face crimes in the form of :
Cow Vigilantism - One of the main reasons for the same is because many Dalits are increasingly driven to the profession of leather making from Cow hides due to extreme poverty[6], hence they are targeted by cow vigilantes.
Honor Killings - Despite India’s independence and rapid modernisation, the caste system still remains prevalent in Indian society. Hence Inter-caste marriages lead to the honor killings of the couple with Dalits mostly being on the receiving end of the violence.
Social Boycott - Even though acts such as these are not prevalent in cities these are largely still prevalent in rural areas where dalits have been excluded from Panchayat meetings and elections and other forms of benefits and subsidiaries and other public services that have been given by the panchayat.
Inter-Caste Clashes - These events rarely take place but when they do take place these result in riots or incidents of mass violence and atrocities being committed against people belonging to the SC and ST community. These incidents can take place even on the difference of an opinion as the case of the Bhima-Koregaon Violence shows us.
The above reasons led to The Government of India in making and passing the scheduled castes and the scheduled tribes prevention of atrocities act, 1989 which was again amended in the year 2015 and again in the year 2018 with an aim to curb the violence. The important provisions of this act shall be discussed below.
Important provisions of the SC/ST Prevention of Atrocities (Amendment) Act, 2015 :
This act has the provisions of criminal law however these laws are distinct from the Indian Penal Code in the sense that it contains the offenses and the punishment for these offenses which are not covered in the Indian Penal Code.
The crimes that are contained under this act are applicable to only Non SC/ST members. However crimes committed by SC/ST members upon other members of the SC/ST community are not covered under this act.
The punishment given under this act is much more stringent than that administered under the Indian Penal Code.
It has also enhanced the punishment given out to public servants such as even punishing public servants who neglect their duties[7].
It also denies Anticipatory Bail under Section 438 of the Crpc to the accused[8] despite the fact that the Supreme Court in its Judgment stated that “bail is the norm whereas jail is the exception”[9].
In case a person who is accused under this act is convicted he will not be allowed to have a probation period. In other words he will be jailed without ever receiving a probation period till he/she completes their jail term[10].
Moreover this act also empowers the state to create a separate mechanism for implementation of the act such as special courts along with the post of a special public prosecutor being created in order to prosecute those accused of committing an offense under this act[11]. It also mandates that a periodic system must be set up at the District, State and the National Level in order to monitor crimes and the levels of crimes contained under this act and also prevent them.
Moreover this act also provided that cases that are brought before the special courts under this act must be decided and disposed of within two months time[12].
Furthermore, the original act which was passed in 1989 was amended in the year 2015 to include more offenses under its purview. These include acts such as touching a woman belonging to the SC/ST community with a sexual intent without her consent and also insulting members of these above-mentioned communities by either using casteist slurs or by abusing them of their caste name in public[13].
Additionally, this regulation states that if the accused was acquainted with the victim or his or her family, the court will automatically conclude that the accused knew the victim belonged to the Scheduled Caste or Scheduled Tribe community[14].
ANALYSIS OF THE SC/ST PREVENTION OF ATROCITIES ACT, 1989 :
Usually the best way to analyze any law is to find out about the implications of the law on the society at large. Hence under this chapter we shall take a look at the SC/ST prevention of Atrocities Act, 1989 and weighing on its various pros and cons and also using these pros and cons to determine whether this law should be amended or even repealed in its entirety.
Advantages of the SC/ST Prevention of Atrocities Act, 1989 :
● Because of the implementation of this act i.e., the implementation of Sections of 2[15] and 14[16], this act has significantly increased the awareness amongst the members of the SC and ST communities regarding the various atrocities that may be committed against them and the various kinds of reliefs and protections that are provided by this act to them against these atrocities. Thus this has also sharply decreased various crimes and atrocities that were being committed against the SC/ST communities when there was no such act pre 1989.
● Moreover, this act has also ensured that the SC/ST community has the right to equality as guaranteed under the Indian Constitution. By ensuring the equity of this community by following the principles of “unequal being treated as unequals” thus helping these communities maintain their distinct identities, traditions and cultures thus also ensuring their protection before the law as guaranteed by the Indian Constitution[17].
● By making the punishments for the crime of discrimination against members of the SC/ST communities much more stringent, it has ensured that these communities can now participate in every aspect and part of this country without worrying about facing discrimination. Members of the SC/ST community can now better avail the benefits of Education, healthcare facilities and also access grants, finances and subsidies from the respective Central or State governments meant for uplifting them economically without being discriminated against or even having to worry about discrimination.
● All the above positive consequences and implications of this act have contributed massively to the inclusive growth of the Indian Economy and also due to the upliftment of the SC/ST community from dire poverty to a largely middle class community it has led to larger participation of the SC’s and ST’s in the political spheres of India.
● And the most important of all these changes is that it has led to the change in mindset of the general caste including the Upper castes in their perception of the SC’s and ST’s regarding whom they are now beginning to view with a positive mindset and also are encouraging intercaste marriages which were largely unheard of in the pre-independence period and for a large portion of the post independence period. This was also agreed upon by a judge of the Supreme court of India in the case of Lata Singh V The State of U.P [18], who opined that “inter caste marriages can be included in the sphere of National Interest as they have the ability to destroy the caste system”.
Disadvantages of the SC/ST Prevention of Atrocities Act, 1989 :
● The main disadvantage of this act is that there is a very low conviction rate and the reasons for this are twofold.
● The first reason for this is because of the very lax implementation of this Act by many State Governments.
● The second reason is because of false complaints being filed against non-SC/ST members without any justification in order to exact vendetta or revenge. An example of this can be found in the state of Rajasthan where the police department informed that an alarming number of false cases have been filed against non SC/ST members by persons belonging to the SC/ST communities. The exact number of false cases has been pegged at nearly 40% of the total number of cases[19]. Another example : In the Firozabad district in the state of Uttar Pradesh, All the non SC/ST members of the gothua village fled the village after selling their homes and possessions due to the number of false cases that were filed against them by the SC/ST the residents of that village[20] under the above mentioned act.
As these disadvantages that have been cited about threatened to undo the very progress and undo the very purpose of passing this act thus also fueling the divide and hatred against the SC/ST community by those who belonged to the non SC/ST communities due to the various hardships that was faced by them in the event of the misuse of this act, the Supreme Court of India decided to take cognizance of the misuse of this act particularly in the case of Subhash Kashinath Mahajan vs The State of Maharashtra [Review of SC/ST Prevention of Atrocities Act ][21].
PROPOSED AMENDMENTS TO THE SC/ST PREVENTION OF ATROCITIES ACT, 1989 :
The first step towards amending this act was taken by the Supreme Court of India in the case of Subhash Kashinath Mahajan vs The State of Maharashtra [Review of SC/ST Prevention of Atrocities Act ] which has been discussed below
Subhash Kashinath Mahajan vs The State of Maharashtra [Review of SC/ST Prevention of Atrocities Act ] :
According to the Supreme Court in Subhash Kashinath Mahajan vs The State of Maharashtra [Review of SC/ST Prevention of Atrocities Act][22], the Act has been misused to the point that it has been utilised to target innocent persons as well as government employees for the purposes of gaining political and personal advantage.
The Parliamentary Standing Committee highlighted concerns of wrongful prosecution under the POA Act, prompting reforms. New regulations aimed to prevent misuse:
DSP-level investigation before FIR filing to confirm allegations.
Anticipatory bail for lack of prima facie crimes/atrocities charge.
Interpretation of PoA law prevents perpetuating casteism via legal process.
Courts can grant advance bail even without genuine complaint, contrary to Act's anticipatory bail prohibition.
Arrest needs approval from the district superintendent/appointing authority.
FIRs against govt. workers require appointing authority's permission.
The Supreme Court's actions led Parliament to amend the SC/ST Prevention of Atrocities Act in 2018. These changes countered the Court's ruling and guidelines, reflecting efforts to safeguard innocent individuals and curb Act's misuse.
These steps that were taken by the Supreme Court of India in the above mentioned case led to the Parliament of India amending the scheduled castes and Scheduled Tribes prevention of atrocities (amendment) Act once again in the year 2018 in order to undo the ruling of the Supreme Court of India and the guidelines that it issued in the above mentioned case.
SUGGESTIONS AND CONCLUSION :
After examining the positive and negative aspects of the SC/ST Prevention of Atrocities Act, it becomes evident that the law has significantly uplifted the SC/ST community from poverty and violence, thereby necessitating its continuation until its ultimate goal of eradicating the caste system is achieved. Thus, its repeal seems untimely. To address potential issues, amending the act seems more fitting.
To curtail misuse for personal or political gains and safeguard innocent individuals, amendments are crucial. Firstly, arrests should require prima facie evidence of the atrocity, backed by forensic or audio/video records, moving beyond solely relying on the victim's account to prevent false cases.
Secondly, anticipatory bail, per Section 438 of the CrPC, should be accessible to accused individuals if the victim is under witness protection and the accused cannot influence the investigation or tamper with evidence. This balanced approach preserves rights while preventing misuse.
Thirdly, stringent actions must be taken against malicious cases. Proving malicious intent beyond reasonable doubt should lead to compensating the falsely accused victim, mirroring the benefits available to the accuser under Section 1 (zc) of the act. If imprisonment occurred, the accuser must serve the sentence the falsely accused would have faced under Sections 1(zc) and 2(ii). This tri-fold approach compensates victims, penalizes false accusers, and deters such incidents from causing unrest.
In summary, considering the transformative impact of the act on the SC/ST community, its repeal seems premature. Instead, amending the act can tackle misuse effectively. Stricter evidence requirements for arrests, provisions for anticipatory bail under certain circumstances, and stringent actions against false accusations together form a comprehensive strategy to maintain the act's intent while safeguarding against misuse and ensuring justice for all parties involved.
ABOUT THE AUTHOR :
SIDDHARTH DAVID D'SILVA is a 4th year student of National Law University Odisha [NLUO] and also the co-founder of the Pulse Legal Blog. His academic interests include Criminal Law, Intellectual Property Rights, Banking Law, Public International Law, International Criminal Law. His extra-curricular interests also include Geo-Politics, Christian Theology and also Political Ideology. He has also completed an online certificate course on the "Moral Foundations of Politics" from Yale University under the guidance of Professor Ian Shapiro.
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