This article is written by Khushi Bansal of 5th Semester University Institute of Legal Studies, Panjab University, Chandigarh, an intern under Legal Vidhiya
Abstract:
This article discusses the impact of the new Prevention of Atrocities (Amendment) Act, 2021 on international human rights law in India. International law provides certain human rights to all citizens. In India, due to diverse cultures and a long history of discrimination, several social groups get special privileges under the Constitution of India and other statutory provisions so that they can be brought to par with the other social groups. Therefore, the two become complementary and supplementary to each other as international human rights law talks about equality and the Indian law also mentions equal treatment. This is the main concern of the following article. The article not only talks about the international provisions of equality but also the constitutional and statutory provision for the protection of Scheduled Castes and Scheduled Tribes, specifically about the SC/ST Act of 1989. The amendments to the act and the landmark judgments are worth discussing in this article. The end is slightly tilted towards the misuse of the special privileges but the conclusion helps the readers to form their opinion, keeping in mind the discussion in the article.
Keywords:
Scheduled Castes, Scheduled Tribes, Human rights, Reservation, Special privileges, Injustice, Exploitation, Misuse, Atrocities
Introduction:
India witnessed a long-traced history of casteism due to its diverse backgrounds. Briefly, the caste system in earlier India was a ladder-like formation where some castes were placed at the lowest level. The upper castes used to ill-treat the lower castes leading to the hindrance in the growth of the latter ones. At the time of making the Indian Constitution, the condition of these social groups was miserable due to which special provisions were added to the Constitution for their elevation and to stop atrocities against them. In addition to these constitutional provisions, the legislature passed the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Also known as SC/ST Act, it is a special statute that prevents the commission of offences against the members of two communities in India, i.e. Scheduled Castes and Scheduled Tribes. Passed in the Parliament of India on 11 September 1989, the aforementioned act provides the required legal safeguards for the protection of the Scheduled Castes and Scheduled Tribes, like establishing special courts for trial[1]. The National Commission for Scheduled Castes and Scheduled Tribes was also formed as a result of the constitutional mandate. In addition, the international human rights law highlights equality as the basic human right[2]. Thus, it can be said briefly that the Indian Constitution and the Act of 1989 along with international law establish a framework to protect the two communities.
Constitutional Provisions:
The Constitution of India includes several articles that protect the rights of minorities. Article 15(4)[3], Article 16(4)[4] and Article 17[5] of the Indian Constitution are meant to provide special privileges to the Scheduled Castes and Scheduled Tribes. Being a part of fundamental rights, these articles strongly protect the backward classes. Furthermore, Article 46 also directs the state regarding the promotion of the educational and economic interests of these sections as well as their protection from social injustice and exploitation. Articles 338 and 338A establish a National Commission for Scheduled Castes and Scheduled Tribes respectively. Moreover, the seats are reserved for the backward classes in most of the organizations and bodies. It was predicted that the situation would improve steadily with these Constitutional provisions as the members of these communities would get equal treatment and special opportunities. However, the holistic development of people in these classes was underachieved. The first report of the National Commission for SCs stated that despite various measures, the socio-economic conditions of the SCs and STs remain vulnerable.[6]
Henceforth, the legislature had to introduce special laws to improve their condition. The Protection of Civil Rights Act of 1955 was the first-ever legislation of post-independence India to protect the civil rights of the Scheduled Castes and the Scheduled Tribes. It primarily aimed at the prevention of untouchability[7] and dealing with the matters relating to it[8]. Finally, the Parliament of India made a successful attempt to prevent the atrocities against Dalits and Tribals in 1989. Though a lot of time was required to abolish this deep-rooted social evil, this legislation took us much closer to achieving the target.
Statutory Provisions:
Besides the constitutional provisions discussed above, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was no less than icing on the cake. This statute was specifically dedicated to the protection of the Scheduled Castes and the Scheduled Tribes from the atrocities against them. It primarily lists the offences of atrocities against the citizens belonging to these two classes and the punishments prescribed for the commission of these offences[9]. With the coming of this act, the atrocities and hate crimes against the two classes were reduced and this act was proved to be a great success. The establishment of ‘Special Courts and Exclusive Special Courts’ for the trial of these atrocities was a great relief to the people fighting for justice[10]. The state governments and public servants were empowered with the authority to action in this regard. The act also aims at improving the lifestyle of the people of these classes.
The provisions of this act can be classified into the following three categories:
- Provisions of criminal law
- Provisions for relief and compensation for victims
- Provisions for establishing special authorities to implement and monitor the act
Under section 23 of the Act, the government also issued the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules in the year 1995, containing the precautionary and preventive measures for the State government to prevent atrocities[11]. Special panels have been formed under these rules for supervision of prosecutions and submission of reports[12]. The role of police in the investigation and the investigation procedure has also been expressly specified. A Scheduled Caste and Scheduled Tribe Protection Cell was also established under the control of Director of Police[13]. A new post of the nodal officer was also created, who worked in coordination with the other authorities to take action against the atrocities and work for the growth of these classes[14]. The measures to be taken by the District Administration[15] and the responsibility of the State governments[16] along with the submission of an annual report[17] are some of the main provisions laid down in the rules of 1995. Moreover, the constitution of a State-Level Vigilance and Monitoring Committee[18] and a District Level Vigilance and Monitoring Committee[19] has also been made necessary for better administration.
International Provisions:
International law highlights equality as one of the major human rights. According to the provisions of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), every person shall have access to equal opportunities and equal treatment. The two-mention equality in dignity and rights[20]. They further provide other rights relating to equality, like all are equal before the law and there shall be no discrimination[21], equal access to public services in his country, and equal suffrage[22], equal access to education on the basis of merit[23] and other similar rights.
It is often argued that the Constitutional provisions and the statutes like the SC/ST Act conflict with the international human rights law as international law provides for equal treatment of all persons, whereas the special privileges provided to Dalits and Tribals violate the right to equality of the citizens other than Dalits and Tribals. However, another set of people, criticizing the statement, defend that the social structure of India is different from all other countries. Therefore, we cannot juxtapose a diverse Indian society having a vast history of casteism with other nations that are not so diverse. So, the most acceptable notion for India is that special privileges are much required in this nation till the backward classes are at a pace with other classes.
Major Amendments:
The SC/ST Act of 1989 has been amended numerous times, in accordance with the changing social conditions. One of the prominent amendments includes the amendment of 2015. The act was amended with the key objective of ensuring more stringent provisions to prevent atrocities against the Dalits and Tribals. The list mentioned in Section 3 of the Parent Act was expanded as some more exploitative acts were added to the category of offences of atrocities.[24] Section 4 of the 1989 act invited punishment for a public servant who neglected his duties under the act. But Section 5 of the amendment act elaborated the section by specifying the duties of the public servant. This has been done to prevent any delays or obstructions in the implementation of the act. By virtue of Section 8 of the Amendment Act, special courts and special public prosecutors were introduced intended to speedily settle the case. A new chapter was added to the parent act, i.e. Chapter IVA dealing with the rights of victims and witnesses. Another prominent provision of the amendment act was the concealment of the identity of the victims and witnesses[25]. Consequently, more cases were registered as more victims raised their voices to demand justice.
After the 2015 amendment, the amendment of 2018 is considered to be the major amendment in the parent act. This was clearly intended to undo the declaration of the apex court in the famous Kashinath Mahajan Case[26]. The Supreme Court, in this case, observed that a preliminary enquiry may be conducted by the DSP to prima facie ensure that the allegations are not motivated. The 2018 amendment overturned the court’s decision and clearly stated that no preliminary enquiry is required for the registration of an FIR. Also, it provided that the investigator officer does not require prior approval for the arrest of any person. Section 438 of CrPC[27] was also in concern and the amendment made it clear that the section shall not apply to this act.
In the year 2021, the act was once again amended when the list of Scheduled Tribes was amended to give effect to the modifications proposed by the state of Arunachal Pradesh.
Important Case Laws:
The Indian judiciary has shown active participation in regulating the issue of SCs and STs. It has delivered various landmark judgments from time to time for the interpretation of the law and regarding the constitutionality of several provisions. Some of the remarkable observations of the courts are as follows:
The Orissa High Court held that merely saying the victim’s caste’s name would not attract the provisions of Section 3(1)(x) of the SC/ST (PoA) Act, 1989. It was specified that the utterance must be done with the intention to insult, intimidate, or humiliate the victim just because he belongs to the SC/ST Community, in order to make the act offensive under the act. The court further stated that the words were uttered out of anger and not because the victim belonged to a particular community.
The Supreme Court upheld the constitutional validity of the 2018 amendment and also distinguished from the opinion laid down in the Mahajan case.
It was held by the court that ‘mens rea’ or criminal intent is essential to prove guilt. The knowledge of the accused about the victim belonging to the SC/ST community was also essential.
The Chhattisgarh High Court held that the courts have the power to grant bail in case it seems that the allegation of offence is sheer misuse of the law.
The problem of misusage:
The pursuit of promulgating this legislation comes into question when cases of misuse are being reported. The circumstances deteriorated to such an extent that the innocent people lost their lives due to the false allegations against them under the act. For instance, “Man commits suicide in Madhya Pradesh fearing case under SC/ST Act”, says the headline of a news article.[28] The innocent being killed, a woman being abused and molested, a youth being sexually exploited, implicated and blackmailed, and a man being wrongfully imprisoned for 20 years; every such instance is a result of the false implications under this act[29].
The Supreme Court observed in Subhash Kashinath Mahajan vs. State of Maharashtra and Ors that the SC/ST Act has become an instrument of blackmail and it is being used by some people to exact “vengeance” and satisfy their vested interests. This stands as the most landmark judgment, where the court diverted its attention towards the misuse of the SC/ST Act by some people of these communities. They began using their privileges to satisfy their personal grudges against a non-SC/ST citizen. As a result, the court made the following observations in this case:
- There is no absolute bar against the grant of anticipatory bail in the cases under the SC/ST Act if the case is found to be prima facie mala fide.
- Acknowledging the abuse of the law, the arrest of a public servant can only be made after the approval of the appointing authority and of a non-public servant after the approval of the Senior Superintendent of police (SSP). The reasons for the arrest are to be scrutinized by the Magistrate to permit any further detention.
- A preliminary enquiry by the Deputy Superintendent of Police (DSP) may be conducted to avoid any false implication of an innocent person. The DSP, during the enquiry, had to find out whether the allegations make out a case or are merely frivolous or motivated.
Any violation of the directions laid down in this judgment attracted disciplinary action as well as contempt. Though this action was much needed keeping in mind the aforementioned instances of the misuse of the act, this decision of the apex court broke out violence throughout India. The members of these classes came on the roads, houses and vehicles were burnt, people were killed, and numerous casualties were reported.[30] As a result, the 2018 amendment came into force undoing the declarations of the court in this case.
Therefore, the ongoing situation is that the misuse of the act continues and nobody, not even the legislature or judiciary, can take action against such misuse. When the judiciary took the initiative, the violence could not make it possible to retain the decision. However, it is the need of the hour to differentiate between a genuine offence of atrocity or allegations out of personal interests.
Conclusion:
It can be inferred from the information in the above article that gone are the days when 70% of the news headlines mentioned the atrocities against Dalits and Tribals. However, it cannot be denied that the atrocities have been completely eradicated. Even in present times, we find cases of discrimination and ill-treatment against the members belonging to the Scheduled Castes and the Scheduled Tribes, especially in the typical rural areas. But it is also true that the condition is much better as compared to the times when the mission just began. Stringent laws and aware citizens made it possible. The active response of the Indian judiciary also made a huge contribution to this accomplishment. We still need to put in more effort to make an ideal social environment for these backward classes, i.e. complete eradication of untouchability and discrimination along with equal and fair opportunities.
[1] Preamble, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
[2] Preamble, UDHR and ICCPR
[3] States can make any special provision for the advancement of socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes
[4] Provision for the reservation of appointments or posts in favour of any backward class of citizens
[5] Abolition of untouchability and making it an offence as per the law
[6] National Commission for SCs, First Report 2004-05, New Delhi, 2006, pp.222-3
[7] In ancient times, the people of Scheduled Castes, i.e. Dalits and the people of Scheduled Tribes, i.e. Tribals were not allowed to have access to public places like temples, wells, hotels, etc. This is termed as ‘untouchability’.
[8] Preamble, The Protection of Civil Rights Act, 1955
[9] Section 3, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
[10] Chapter IV, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
[11] Rule 3, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995
[12] Rule 4, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995
[13] Rule 8, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995
[14] Rule 9, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995
[15] Rule 12, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995
[16] Rule 14, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995
[17] Rule 18, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995
[18] Rule 16, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995
[19] Rule 17, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995
[20] Article 1 of UDHR and Preamble of ICCPR
[21] Article 7 of UDHR and Article 26 of ICCPR
[22] Article 21 of UDHR and Article 25 of ICCPR
[23] Article 26 of UDHR
[24] Section 4, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015
[25] Section 15A (8), The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
[Added by the Amendment of 2018]
[26] Subhash Kashinath Mahajan vs. State of Maharashtra and Ors 2018 (4) SCC 454
[27] Direction for grant of bail to a person apprehending arrest
[28] P Naveen, Man commits suicide in Madhya Pradesh fearing case under SC/ST Act, The Times of India (21 October 2018), available at https://timesofindia.indiatimes.com/city/bhopal/man-commits-suicide-in-madhya-pradesh-fearing-case-under-sc/st-act/articleshow/66307704.cms, last seen on 21 August, 2023
[29] Jhankar Mohta, From sexual harassment to breaking their own head with a brick: Here are 6 cases in 5 weeks where SC/ST Act was falsely used, opIndia (30 March, 2021), available at https://www.opindia.com/2021/03/six-cases-in-5-weeks-sc-st-act-was-falsely-used-to-implicate-people/, last seen on 21 August, 2023
[30] April 2018 caste protests in India, Wikipedia, available at https://en.wikipedia.org/wiki/April_2018_caste_protests_in_India, last seen on 22 August, 2023
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