SC Upholds Changes to SC/ST Atrocities Law By Rahul Saxena @LexCliq

The Supreme Court has upheld the constitutional validity of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018.The Amendment Act nullified the Court’s 20th March, 2018 judgment which had diluted the stringent provisions of the original Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Petitions were filed challenging the 2018 Amendment Act on the grounds of violation of the fundamental right to equality (Article 14) and personal liberty (Article 21).

Salient Features of the Amendment Act, 2018 It added Section 18A to the original Act.

It delineates specific crimes against Scheduled Castes and Scheduled Tribes as atrocities and describes strategies and prescribes punishments to counter these acts. It identifies what acts constitute “atrocities” and all offences listed in the Act are cognizable. The police can arrest the offender without a warrant and start an investigation into the case without taking any orders from the court. The Act calls upon all the states to convert an existing sessions court in each district into a Special Court to try cases registered under it and provides for the appointment of Public Prosecutors/Special Public Prosecutors for conducting cases in special courts. It creates provisions for states to declare areas with high levels of caste violence to be “atrocity-prone” and to appoint qualified officers to monitor and maintain law and order. It provides for the punishment for wilful neglect of duties by non-SC/ST public servants. It is implemented by the State Governments and Union Territory Administrations, which are provided due central assistance.

Section 18A states that For the Prevention of Atrocities Act, the preliminary enquiry shall not be required for registration of a First Information Report against any person. The provision of section 438 (pre-arrest bail) of the Code of Criminal Procedure (CrPC) shall not apply to a case under the Act, notwithstanding any judgment or order or direction of any Court.

Why was the SC/ST Act enacted?

Since crimes against SCs and STs are fundamentally hate crimes, the Rajiv Gandhi enacted the Act in 1989. It gave furtherance to the provisions for abolition of untouchability (Article 17) and equality (Articles 14, 15).

Why it was amended?

The Bench reasoned that human failing and not caste is the reason behind the lodging of false criminal complaints. The Supreme Court condemned its own earlier judgment, saying it was against “basic human dignity” to treat all SC/ST community members as “a liar or crook.” Caste of a person cannot be a cause for lodging a false report, the verdict observed. Members of the SCs and STs, due to backwardness, cannot even muster the courage to lodge an FIR, much less, a false one, the judgment noted.

The Subhash Kashinath Mahajan case

Mahajan was Director of Technical Education in Maharashtra. Two non-SC officers had made an adverse entry on the character and integrity of a Dalit employee, whom Mahajan in 2011 denied sanction for prosecution against those officers. The denial was challenged on the ground that the state government and not the director was the competent authority. The apex Court held that safeguards against blackmail are necessary as by way of rampant misuse, complaints are largely being filed against public servants with oblique motive for the satisfaction of vested interests.

In what manner had the 2018 judgment diluted provisions for arrest?

ANTICIPATORY BAIL

In section 18 of the Act, Parliament had laid down that the provision of anticipatory bail under Section 438 of the CrPC of 1973 will not be available to an accused under the Act. The provision of anticipatory bail was introduced for the first time on the recommendation of 41st Law Commission in 1973. It is a statutory right, not part of the right to life and personal liberty under Article 21 of the Constitution, and thus there is no fundamental right to anticipatory bail. In the 2018 judgment, the Court laid down safeguards, including provisions for anticipatory bail and a “preliminary enquiry” before registering a case under the Act. While review the Bench said Section 18 was enacted to instil a sense of deterrence and relied on Kartar Singh (1994) in which the court had held that denial of anticipatory bail does not violate Article 21.

FIR

The court had observed that “liberty of one cannot be sacrificed to protect another”, and the “Atrocities Act cannot be converted into charter for exploitation or oppression by unscrupulous persons or by police for extraneous reasons”. He ordered that neither is an FIR to be immediately registered nor are arrests to be made without a preliminary inquiry by an SSP.An arrest can only be made if there is “credible” information and police officer has “reason to believe” that an offence was committed. In the review judgment, Justice Mishra said public servants already have a remedy in false cases under CrPC Section 482 and can get such FIRs quashed by High Courts. He rejected the need of an SSP’s approval for arrest.

PERMISSION

In 2018, the court had said that even if a preliminary inquiry is held and a case registered, arrest is not necessary, and that no public servant is to be arrested without the written permission of the appointing authority. The court extended the benefit to other citizens and said they cannot be arrested without the written permission of the SSP of the district. In review the court said that the decision on arrest is to be taken by the investigating authority, not the appointing authority.

Were other provisions diluted?

The court had observed that interpretation of Atrocities Act should promote constitutional values of fraternity and integration of the society. This may require ‘check on false implication of innocent citizens on caste lines’. Observing that the law should not result in caste hatred, the court overlooked the fact that the Act had to be enacted due to caste hatred. The review judgment said that such riders for registering a report are wrong and it would give an advantage to upper castes whose complaints can be registered without any such inquiry.

How frequently do SCs/STs face atrocities?

A crime is committed against an SC every 15 minutes. Six SC women are raped every day on an average. Between 2007 and 2017, there was a 66 per cent growth in crimes against SCs. Data from the National Crime Record Bureau, which the 2018 judgment was based on, showed cases of rape of SC women had doubled in 10 years.

 

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