Bharat bandh: How Supreme Court decision will affect Dalits
On a day when various organisations have called for a nationwide shutdown, protesting against the 'dilution' of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, [SC/ST Act] by the Supreme Court, the Narendra Modi governent moved a review petition.
The Supreme Court verdict attracted widespread condemnation by activists who work for Dalit rights as well as politicians cutting across party lines.
Besides Dalit activists, legal experts, Opposition parties, the National Commission for Scheduled Tribes (NCST) and the National Commission for Scheduled Castes (NCSC) also expressed their anguish over the dilution of the Act that defines and criminalises atrocities against SC/STs. Even a section within the ruling Bharatiya Janata Party and its allies expressed opposition.
“We have filed a comprehensive review petition that will be presented before the court,” Union Law Minister Ravi Shankar Prasad said Monday.
On 20 March an apex court Bench of Justices AK Goel and UU Lalit, while examining the need for procedural safeguards to prevent the abuse of the SC/ST Act, issued directions in effect diluting the provisions related to immediate arrest for offences under the Act.
Observing that “there are instances of abuse of the Act by vested interests” the Bench removed the mandate of immediate arrest under the Act and directed that arrest can be made only after preliminary inquiry and sanction by the competent authority. It also removed the “absolute bar” on an accused taking recourse to anticipatory bail.
In the verdict, the Bench laid the following:
- There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.
- In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the Senior Superintendent of Police, which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the Magistrate for permitting further detention.
- To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
The Bench also stated that any violation of the directives (2) and (3) “will be actionable by way of disciplinary action as well as contempt.”
The court stated that “to avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the parameters of the Atrocities Act and is not frivolous or motivated”.
With the court’s directive, not only a person accused under the Act will not be arrested unless a preliminary enquiry is conducted to ascertain the veracity of the charges, but s/he also has the relief of seeking anticipatory bail, which was hitherto unavailable.
Deliberating on section 18 of the SC/ST Act that bars the applicability of anticipatory bail to an accused, the Bench observed that the legislature “never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance”.
“It has been judicially acknowledged that there are instances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes. It may be noticed that by way of rampant misuse complaints are ‘largely being filed particularly against Public Servants/quasi judicial/judicial officers with oblique motive for satisfaction of vested interests’.
“Innocent citizens are termed as accused, which is not intended by the legislature. The legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance.
“The Act is also not intended to deter public servants from performing their bona fide duties. Thus, unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens. Thus, limiting the exclusion of anticipatory bail in such cases is essential for protection of fundamental right of life and liberty under Article 21 of the Constitution,” the Bench said.
During the hearing, the petitioner while arguing on misuse and abuse of the Act, pointed to the low conviction rate of cases and “large number” of false cases.
It was pointed out that in 2015, out of 15638 cases decided by the courts, 11,024 cases resulted in acquittal or discharge, 495 cases were withdrawn and 4,119 cases resulted in conviction.
Quoting the National Crime Records Bureau figures, the petitioner stated that in 2016, over 6,000 cases were found to be “false”.
The court was also informed that out of the cases disposed of by courts in 2015, more than 75% resulted in acquittal/withdrawal or compounding of the cases.
The court, in this regard, observed:
“We are satisfied, in the light of statistics already referred as well as cited decisions and observations of the Standing Committee of Parliament that there is need to safeguard innocent citizens against false implication and unnecessary arrest for which there is no sanction under the law which is against the constitutional guarantee and law of arrest laid down by this Court.
“... the said Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons against other citizens as has been found on several occasions in decisions referred to above.
“This Court must enforce such a guarantee. Law should not result in caste hatred. The preamble to the Constitution, which is the guiding star for interpretation, incorporates the values of liberty, equality and fraternity.
While the Bench reiterated the misuse and abuse of the provisions of the Act, what it failed to realise as pointed out by experts, that the low conviction rate was actually a reflection of the way cases under the Act are registered and pursued.
Human Rights Watch in a report “Hidden Apartheid: Caste Discrimination against India’s ‘Untouchables” had observed: “The low rate of convictions, compared against the high number of atrocities reported against Dalits, speaks to the caste bias of prosecutors, as well as other organs of justice, including the judiciary.
On the very day of the judgment, Minister of State for Social Justice and Empowerment Ramdas Athawale in a written reply in Lok Sabha informed that the number of cases of offences of atrocities against members of SCs registered under the Act in conjunction with the IPC, have gone up to 40,774 in 2016 from the 38,564 in 2015.
According to NCRB, the number of cases of crime against SCs pending for trial has increased manifolds. From 85,264 case in 2006 the figure has seen a 50% rise to reach 1,29,831 case by 2016.
Besides the removal of bar on anticipatory bail, experts say the court’s mandate for a preliminary inquiry by a senior police officer and sanction by the competent authority for a accused to be arrested, has dealt a death blow to Act that was enacted with the objective of eradicating inherent discriminatory attitudes against SCs and STs.
Experts have also strongly objected to the court making punishable any violation of its directives of a preliminary enquiry and prior sanction for pursuing against an accused under the Act.
With many of the cases of atrocities under the Act either going unreported or the investigators reluctant to pursue with the case, the court’s diktats will only lead to further rise in the malaise.
The court verdict has come at a time when the country under the Modi regime has been witnessing a spate of caste related violence.
The rise in incidents of violence against Dalits led to the government in January 2016 introduce amendments in the SC/ST Act whereby new offences of atrocities like tonsuring of head, moustache, garlanding with chappals, dispose or carry human or animal carcasses, etc were introduced.
Besides adding a chapter on the ‘Rights of Victims and Witnesses’, the amendment Act also provides for establishing “Exclusive Special Courts’ to ensure speedy and expeditious disposal of cases.
While reflecting on the abuse of the Act, many say the Bench ought to have reflected on the series of incidents where Dalits have been subjected to violence and discrimination. The latest: a man from Hathras (Uttar Pradesh), who has been writing to various authorities for months to seek help for taking out his marriage procession through a village dominated by upper castes.
Just days ahead of the Apex court verdict, the man, Sanjay Kumar, moved the Allahabad High Court with his plea.
The verdict has created ripples within the centre’s ruling National Democratic Alliance. A section of Parliamentarians with SC/ST background from the BJP and ally Lok Janshakti Party (LJP) of Ram Vilas Paswan held talks with Prime Minister Modi, Union Social Justice Minister Thawar Chand Gehlot and wrote to Prasad. Questioning her party’s inaction over the issue, BJP MP Savitri Bai Phule has asserted her resistance against any bid to tamper with reservation system.