Balancing Individual Liberty and Prevention of Atrocities Law

    About the Article

    The Constitution of India seeks to create a state of pluralistic views and ideologies. Like every society, India isn’t free from social perils that arise out of ideological differences in different communities or even in an enclosed system of caste. In the foregoing sections, we are going to dwell upon the manner in which the institutions of this state have tried to balance the scales of justice when it comes to the protection of minorities and individual liberty.

    Understanding the anti-atrocities law

    The anti- atrocities law comprises the Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act, 1989 and the amendments made thereto. This Act complements the Protection of Civil Rights Act, 1955. The primary objective behind these enactments is to abolish untouchability[1] and restore human dignity amongst the Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs).

    The background behind the anti-atrocities law

    The aforesaid enactments were needed because of the long-standing system of caste in India, was not only associated with restricting people to their respective hereditary callings or endogamy but also became an instrument for exploitation and humiliation of the members of the lower castes at the hands of the member of the upper caste.

    The followers of the caste system took an extreme step by creating the practice of “untouchability” and began enforcing it against all members of the lower caste. The practice was created on the grounds that the members of the lower caste were engaging in certain “polluting acts”[2]. As a result, the untouchables were denied access to basic amenities that are necessary to sustain human life- clean drinking water, residence in the village, access to healthcare facilities, ration shops or other public places.

    “Untouchability” has not been expressly defined in the Indian constitution however it is a well established social fact that is incapable of any precise definition. Indian history must be looked at while dealing with untouchability[3].

    In State of Madhya Pradesh v. Ram Krishna Balothia[4], the Supreme Court has held that Articles 15 (2) and 17 help in eradication of untouchability by the elimination of discrimination on the basis of caste. Ordinarily, the fundamental rights are enforceable against the State; however, the aforesaid articles are exceptional in nature and can also be enforced against private persons.

    In the light of the aforesaid discussion, it now becomes essential to expound upon the provisions of anti-atrocities law in India.

    Summary of the law: Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act, 1989

    The object behind enactment of this law was four-fold:

    (i) To prevent the commission of atrocities against the members of Scheduled Castes (SCs) and Scheduled Tribes (STs).

    (ii) To specifically define the acts that will constitute an atrocity under the Act and hence will be punishable as an offence under the act.

    (ii) To provide for an independent forum to deal with the offences under the Act viz. The special courts.

    (iii) To provide for the rehabilitation of the victims of the offences specified under the Act.

    Section 3 lays down a list of offences that constitute as an atrocity (or offence) under the Act. It includes the following acts:

    (i) Forcing the members of SCs or STs to consume any obnoxious or inedible substance;

    (ii) Dumping carcasses, excreta, waste matter or other kinds of obnoxious substance in the premises or the neighbourhood of a member of SC or ST, with an intent to cause insult, annoyance or injury to such a person;

    (iii) Forcefully stripping off a member of SC or ST and parading him/her naked or painting his/her face or performing any similar act that is violating human dignity;

    (iv) Wrongfully possessing or cultivating any land which belongs to or has been allotted to a member of SC or ST;

    (v) Wrongfully dispossessing a member of SC or ST of his land or other premises or interfering with the enjoyment of his/ her rights in relation to such land or other premises or water;

    (vi) Compelling or enticing a member of SC or ST to work as a bonded labourer or enter into ‘begar system’

    (vii) Compelling a member of SC or ST to vote in a certain way or not to vote for a particular candidate;

     (viii) Instituting false, malicious or vexatious suit or criminal or other legal proceedings against a member of SC or ST;

    (ix) Gives frivolous or false information to a public officer thereby compelling him to use his lawful force to the detriment of a member of SC or ST.

    (x) Intentionally insulting or intimidating a member of a SC or ST in broad public view;

    (xi) Assaulting or using force against a woman, who is a member of SC or ST, with an intention to dishonour or outrage her modesty;

    (xii) Dominating the will of a woman belonging to SC and ST, thereby exploiting her sexually;

    (xiii) Corrupting or fouling of any source of water such as ponds, lakes, reservoirs, that is ordinarily used by the members of SCs or STs, so as to render it unfit for ordinary use.

    (xiv) Preventing a member of SC or ST from having a right to way or access to a place of Public resort, which is capable of being used by the ordinary people.

    (xv) Forcing or causing a member of SC or ST to leave his or her house, village or another place of residence.

    The aforesaid offences are made punishable for a period ranging from 6 months to 5 years. The convict is also liable to pay a fine. Apart from the aforesaid grounds Section 3 also makes the following provisions:

    • Whoever gives or fabricates false evidence against a member of SC or ST and as a result of which such a member is convicted for a capital offence and sentenced to death or life imprisonment. Then such a person (giving or fabricating false evidence) will be punished with death or life imprisonment (as the case may be).

    • Whoever gives or fabricates evidence against a member of SC or ST and as a result of which such a member is convicted of an offence punishable with 7 years of imprisonment. Then such a person (giving or fabricating false evidence) will be punished with imprisonment ranging from 6 months but which may extend to 7 years.

    • Whoever commits mischief with an explosive substance or fire with an intention to destroy- (a) a place of worship or (b) a place of dwelling or (c) place of custody of property, belonging to or frequented by the members of SCs or STs. Shall be punished with imprisonment for life and fine.

    • Whoever commits any offence that is punishable under the Indian penal code (IPC) (with 10 years of imprisonment) against any member of SCs or STs, shall be punished with imprisonment for life and fine.

    • Whoever (a) tempers with the evidence or (b) makes such evidence disappear or (c) gives false information -in relation to an offence against the members of SCs or STs with an intention to shield the offender, shall be punished with imprisonment prescribed for the offence

    • In case an offence under the Act is committed by a public servant, he/ she will be liable to be punished with imprisonment varying from a minimum of 1 year to the one prescribed for the offence.

    Section 4 prescribes a punishment of 6 months of imprisonment for a public servant who neglects to fulfil his statutory obligations under the Act.

    Section 5 provides for enhanced punishment for subsequent offenders with a minimum punishment of 1 year which may extend to the punishment prescribed for the offence.

    Section 6 expressly provides that certain provisions of the Indian penal code (IPC)[5] shall apply along with the provisions of the Act.

    Section 7 enables the special court to forfeit the property (movable or immovable or both) of the convict and declare that such property has been used for the commission of an offence under the Act. In the case of an accused person, the special court has the power to attach the property of such accused awaiting the conclusion of the trial.

    Section 8 enables the special court to presume the following facts

    (a) In case it is proved that any financial assistance has been tendered by the accused to another or a suspect, then it is to be presumed that such an accused has abetted the offence.

    (b) In case it is proved that a group of persons have committed an offence under this act in furtherance of their interest in relation to any dispute associated with land or property or otherwise, it is to be presumed that such persons have acted with a common intention or in furtherance of a common object.

    Section 9 enables the State Government to delegate powers under this Act or under the code to any officer for the purpose of preventing or coping with any offence under the Act or for the purpose of prosecuting any cases or group of cases. In such cases, the police officials and other authorities must assist such an officer in arrest, investigation and prosecution of persons.

    Section 10 enables the Special Court to order the removal of any person from any scheduled areas where he/she is likely to commit an offence. 

    Section 11 prescribes the use of lawful force necessary to- arrest and remove such a person as may be ordered u/s 10 or to keep him outside such an area. 

    Section 12 enables the use of reasonable force to take the measures and photographs of such a person whose removal has been ordered under Section 10. 

    Section 13 prescribes the penalty for violation of an order made under Section 10- the penalty is imprisonment for 1 year and fine

    Section 14 enables the State Government to establish special courts for the purpose of dealing with the offences under the Act. Such courts are to be established after due consultation with the Chief Justice of the High exercising jurisdiction over the state concerned. 

    Section 15 enables the State Government to appoint special prosecutors by giving notification in the official gazette. Such officers are to represent the State in the special court and prosecute offences under the Act.

    Section 16 enables the State Government to impose collective fines and Section 17 authorises the District Magistrate or Executive Magistrate or Sub- Divisional Magistrate or any Police officer (not below the rank of deputy superintendent of police) to declare any area as an area prone to atrocities and take any steps that are necessary for the maintenance of law and order.

    Section 18 expressly prohibits the application of Section 438[6] of code of criminal procedure, 1973 (Cr.p.c.) to the provisions of the Act.

    Section 19 prohibits the applicability of Section 360[7] of Cr.p.c and the provisions of Probation of offenders Act to this Act. 

    Section 20 gives the Act an overriding effect over any other laws inconsistent with the provisions of the Act.

    Section 21 spells out the duties of the State Government towards the victims, some of them are –making provisions for legal aid, travelling and maintenance expenses, social and economic rehabilitation, and identification of atrocities prone areas. The rules made by the Central Government in pursuance of this Act must be followed by the State Government.

    Section 22 deals with protection for action taken in good faith by the Central Government or State Government or any person.

    Section 23 deals with the delegated powers of the Central Government to make rules under the Act and the requisite parliamentary control over such rules.

    The aforesaid Act was amended by the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. This amendment introduced the following new features in the parent Act:

    (a) Acts to be treated as offences: The Amendment Act amends the existing offences and adds more offences to the parent Act. The new offences added include:

    (i) Garlanding a member of SC or ST with footwears or painting their faces;

    (ii) Compelling to dispose of animal carcasses or human bodies or to perform manual scavenging,

    (iii) Abusing a member of SC or ST in the name of a caste in public view,

    (iv) Socially or economically boycotting any member of SC or ST,

    (v) Attempting to disrespect any deceased person held in high regards by the members of SCs or STs or attempting to promote a feeling of ill-will against such members;

    (vi) Intentionally touching a woman belonging to SC or ST community in a sexual manner and without her consent or using words and gestures or acts of sexual nature or dedicating an SC or ST woman as a devadasi to a temple or any similar act. Consent means voluntary agreement through a verbal or non-verbal communication

    (vii)Preventing the members of SCs or STs from using -any customary way or land or premises (Educational or Healthcare institutions or temples), that are open to other people.

    (b) The Act also creates an additional assumption – where the accused knows the victim or the victim’s family members, the Courts will presume that the accused knew the caste of the victim unless the contrary is established.

    (c) The duties of the public servant have been expressly provided. The breach of such duty will entail imprisonment of 6 months- 1 year. These duties include – compulsory registration of FIRs and reading the information to the informant, giving a copy thereof to the informant, carrying out the investigation and assisting in the prosecution process.

    (d) Certain IPC offences such as hurt, grievous hurt, intimidation, etc. (attracting less than 10 years of imprisonment) have been made punishable under the parent Act.

    (e)Establishment of ‘Exclusive courts’ and appointment of ‘Exclusive Special Public Prosecutor’ has been provided for in the amendment Act.

    (f) The State Government is under the duty to protect the victims, the witnesses and the dependants of the victims.

    (g) The trial should be completed within 2 months and the identity of the witness should be concealed. The court is empowered to take cognizance of any report of harassment of the informant, witness or the victim and deal with such a case separately.

     

    The Parent Act was amended for the second time by the virtue of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018. The object of this amendment was to undo the dilution caused by the judgment of the Supreme Court[8] and restore the deterrence in the law. The 2018 Amendment has the following features[9]:

    (a) A preliminary inquiry prior to registration of an FIR will not be required under the Act;

    (b) The investigator officer does not the permission of any person prior to arresting the accused based on the information provided to him; 

    (c) the procedure laid down in the parent Act and the Code shall apply to all the investigations being conducted under the Act.

    (d) It was reaffirmed that Section 438 of Cr.P.C is not applicable to the offences committed under the parent Act.

    (D) Interpretation given by the courts: Anti- atrocity law in conflict with personal liberty

    The present section of this paper will explore the interpretation accorded to the different provisions of the Act and the amendments thereto. Before proceeding with this section we must all remember that as of 2016 National Crimes Records Bureau Reports[10]- 38670 cases of crimes against members of SCs and STs have been reported, keeping this view in mind we should now proceed to examine the decisions coming from the bench.

    In Kanubhai M. Parmar v. State of Gujarat[11] in an appeal filed before the Gujarat High Court, the appellant challenged the order passed by the learned Additional session judge, Vadodara. Herein 2 of the 5 accused persons belonging to Scheduled Caste community were sent to the ordinary competent court to be tried under the IPC for assaulting and not under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SCs and STs (POA) Act, 1989). The Gujarat High Court, speaking through Justice D. Srivastava, held that the order was valid as the accused persons belonged to the scheduled castes. A member of the scheduled caste or scheduled tribes cannot be prosecuted under the SCs and STs (POA) Act.

    In State of Karnataka v. Appa Balu Ingale[12], a division bench of the Supreme Court was called upon to decide an appeal brought by the state of Karnataka against the judgment passed by a single learned judge of the Karnataka High Court. Herein the High Court had ordered the release of the respondent convicted under the Protection of civil rights Act by the Trial court (the sentence was also upheld by the Additional Session Judge, Belgaum), on the grounds that testimony of the witnesses wasn’t sufficient to convict the accused. The Supreme Court, while speaking through Justices Ramaswamy and Kuldip Singh, held that the High Court while exercising its revisionary powers cannot interfere with the concurrent findings of the trial court and the Sessions court by re-appreciating the evidence. The sentence of the lower court stands restored.

    In the State of M.P v. Ram Krishna Balothia[13], the division bench of Supreme Court was presented with an appeal filed against the judgment and order passed by the Madhya Pradesh High (dated 2th March 1994). Herein, the High Court had struck down Section 18 of the SCs and STs (POA) Act as being unconstitutional for violation of Articles 14 and 21 of the Constitution of India. Section 18 (as discussed above) prohibits the applicability of Section438 of the Crpc to the SCs and STs (POA) Act. The Supreme Court, while speaking through Justices Sujatha Manohar and BP Jeeva Reddy, held that the offences enumerated under the SCs and STs (POA) Act constitute a separate and special class in themselves, they must be read in the light of Article 17 of the Constitution which not only prohibits untouchability but also directs the state to make it a punishable act. Thus, the provisions of the Act are not violating Article 14. Section 438 of the Cr.p.c. is not an integral part of Article21 of the Constitution of India, as the former is a part of a statutory right that was created almost 23 years after the commencement of the Constitution of India. The power to grant anticipatory bail is a discretionary power bestowed on the High Courts and the Session Courts. It cannot be claimed as a matter of right by the accused. It should be used sparingly. There is a high probability that the accused when granted anticipatory bail, will terrorise the victims or temper with the investigation process. The provisions of the Act are held to be constitutionally valid and thus, the impugned judgment and the order of the High Court are set aside.

    In Vilas Pandurang Pawar & Anr. v. State of Maharashtra & Ors[14], the division bench of the Supreme Court was asked to decide on a question – “whether an accused charged with various offences under IPC along with the provisions of the SCs and STs (POA) Act is entitled to anticipatory bail under section 438 of Cr.p.c?”, the court held that on account of the bar of Section 18 of the SCs and STs (POA) Act, no anticipatory bail can be granted to the accused even though he is also charged under the IPC, the judgment and order passed by the Bombay High Court have been upheld.

    Offensiveness in Obscenity and the Legal Provisions

    In Shakuntala Devi v. Baljinder Singh[15], the division bench of the Supreme Court was presented with an appeal against the impugned judgment[16] passed by the Punjab and Haryana High Court allowing anticipatory bail to a person accused under the IPC and the SCs and STs (POA) Act. However, no reasons were given by the High Court for granting such anticipatory bail. The Supreme Court, while speaking through Justices AK Patnaik and Sudhansu Jyoti Mukhopadhya, held that the order passed by the High court was contradictory to section 18 of the SCs and STs (POA) Act and the judgment of Vilas Panduranga Pawar (supra). Thus, the judgment was set aside.

    In Dr.Subhash kashinath Mahajan v. State of Maharashtra and Ors[17], an appeal was filed against the order of the Bombay High Court[18] refusing to quash the proceedings instituted under the SCs and STs (POA) Act. The Appellant alleged that the second respondent had misused the provisions of this Act to file a complaint against him for not granting sanction to prosecute his employees Dr Satish Bhisne and Dr Kishor Burade, who were seniors of the second respondent and had allegedly made adverse remarks against him in an annual confidential report prepared by them. The Supreme Court, while speaking through Justices AK Goel and UU Lalit, held that the provisions of anticipatory bail can be read into the SCs and STs (POA) Act to protect the interest of innocent citizens and public servants who must fearlessly perform their bonafide duties. The SCs and STs (POA) Act cannot be used as a weapon to oppress or harass innocent citizens, irrespective of caste or religion as it is against the guarantee of the Constitution. While quashing the aforesaid order the Supreme Court not only enabled the grant of anticipatory bail under the Act but also provided for additional safeguards[19]-

    (a) If the investigating officer seeks to arrest a public servant under the provisions of SCs and STs (POA) Act, he must first seek the approval of the appointing authority;

    (b) If the investigation officer wants to arrest a private citizen, the prior approval of the SSP is necessary. The SSP must ensure that a prima facie case is made out under the SCs and STs (POA) Act prior to granting such an approval.

    (c)The arrest may be made in appropriate cases if considered necessary for reasons to be recorded in writing.

    (d) Reasons for arrest must be scrutinized by the magistrate for permitting further detention;

    (e) Preliminary enquiry to be conducted by the Dy. SP level officers to find out whether allegations make out a case and that the allegations are not frivolously made or motivated.

    (f) If the aforesaid steps are not followed it would lead to contempt of court.

    This judgment was seen as a dilution to the SCs and STs (POA) Act and the Union of India filed a petition to seek a reconsideration of the aforesaid decision. Pending the decision of the Supreme Court the SCs and STs (POA) Act was amended by the 2018 amendment Act.

    In Prithviraj Chauhan v. Union of India[20] the constitutional validity of the 2018 Amendment to the SCs and STs (POA) Act was challenged in the Supreme Court on the grounds that the new Section 18 A violates Article 14 and Article 21 of the Constitution in-so-far as it enables arbitrary arrest of an accused person, even though there might be no prima-facie case against him. It nullifies the guidelines issued by the Supreme Court in Subash Mahajan (Supra). The Supreme Court, while speaking through Justices Arun Mishra, Ravindra Bhat and Vineet Saran, held that the amendment was constitutionally valid. However, the High Courts and the Session Courts will still have the power to issue anticipatory bail in a given case after close scrutiny of the facts.

    In Union of India v. State of Maharashtra[21], a review petition was filed against the judgment and directions issued by the Supreme Court in Subash Mahajan (supra). The Petitioner contended that the guidelines issued by the court were beyond its powers under Article 142 of the Constitution of India, the rate of conviction under the SCs and STs (POA) Act was low due to witnesses turning hostile or the victim being threatened or the prosecutor was unable to present the proper charges. The Act being social-welfare legislation must not be diluted by creating unnecessary riders by the court. There is no provision for a preliminary enquiry in the Cr.p.c. or in the SCs and STs (POA) Act. Under section 156 of the Cr.p.c. the police officer has sufficient power to conduct an investigation and register an FIR if according to him there are reasons to suspect that a cognizable offence has been made out. The Supreme Court, while speaking through Justice Arun Mishra (writing for himself, Justices Vineet Saran and S. Ravindra Bhat), held that such riders will hinder the process of investigation. However, the provision associated with the grant of anticipatory bail in those places where no prima-facie case has been made out under the Act is still applicable.

     Suggested policy changes

    The Act in itself is not bad legislation. However, its implementation is being problematic.

    As observed in the case of Union of India v. State of Maharashtra (supra), the problem lies in–

    (a)The delay in filing of FIRs,

    (b) The process of investigation,

    (c) The ability of the witness or the complainant to turn hostile,

    (d) The prosecutor’s inability to scrutinize the charge-sheet properly and to present the case in a proper manner.

    (e) The inability of the court to appreciate evidence.

    It seems like the problem lies not in the deterrence of the law but in the failure of the criminal justice system.

    The following policy changes are suggested to deal with the aforesaid problems

    (a) Providing the state commission for backward classes with the power to prosecute the offenders under the Act. This will deal with the incompetence of the prosecution;

    (b) Enable the victim to make complaints directly to the registry of the special courts. The presiding judge can take the cognizance and send the matter to the concerned police station for investigation. This will help in dealing with delayed registration of FIRs and investigations[22].

    (c) Making schemes for the protection of the witnesses and the victims in order to ensure a fair trial.

    (d) The Act should be amended to ensure that persons bringing frivolous cases are punished with a minimum imprisonment of 6 months and fine. This will discourage frivolous litigation and reduce the workload of the courts and the investigating agencies, as only truly aggrieved victims will come forward to file a case. Such a provision is also found in the POCSO Act[23]. 

    Conclusion

    In the light of the aforesaid discussion, it is clear that the law of anti-atrocities is special in nature as it seeks to protect the SCs and STs from any kind of injury at the hands of the members of upper caste. The interpretation given by the Supreme Court, enabling the use of anticipatory bail only in those matters wherein a prima-facie case has not been made out- helps in safeguarding individual liberty against the arbitrary use of power by the authorities. In the light of the aforesaid suggestions, the criminal justice system can be changed without affecting the deterrence of the law.

    Endnotes

    1.  As enshrined as a fundamental right under Article 17 of the Indian Constitution.

    2.  The list of polluting acts included- manual scavenging, handling of dead bodies, skinning of dead animals, leather tanning and agricultural labour. Thorat Amit, and Omkar Joshi. “The Continuing practice of untouchability in India: Patterns and mitigating influences”, 2015. https://ihds.umd.edu/sites/ihds.umd.edu/files/publications/papers/ThoratJoshi3.pdf

    3.  Zainab Khorakiwala, Democracy of Inclusion or exclusion? Understanding and analyzing the scheduled castes and scheduled tribes (Prevention of Atrocities) Act, 1989. Global Journal of Human- Social Science: Political Science, Vol. 19 Issues 2 Version 1.0 the year 2019.

    4.  AIR1995 SC 1198

    5.  The following provisions of the Indian penal code (IPC) are made applicable to the Act:

      1. (a) S.34- Acts done by several persons in furtherance of common intention.

      2. (b) Chapter III- Punishments (S.53-S.75)

      3. (c)Chapter IV – General Exceptions (S. 76- S. 106)

      4. (d) Chapter V- of Abetment (S. 107- S. 120)

      5. (e) Chapter VA- Criminal Conspiracy (S. 120 A and S. 120 B)

      6. (f) Section 149- Every member of an unlawful assembly is guilty of the offence committed in prosecution of a common object.

      7. (g) Chapter XXIII-Attempts to commit an offence (S. 511).

    6.  Section 438 (Cr.p.c)- Directions for granting bail to person apprehending arrest.

    7.  Section 360 (Cr.p.c)- Order to release on probation of good conduct or after admonition.

    8.  Dr Subash Kashinath Mahajan v. State of Maharashtra, AIR 2018 SC 1498

    9.  Section 2 of the 2018 Act.

    10.  http://ncrb.gov.in/StatPunblications/CII/CII2016/pdfs/Table%207A.pdf containing statistics relating to crime against members of Scheduled Castes and Scheduled Tribes populations

    11.  2001 (3) RCR (Cri.)

    12.  AIR 1993 SC 1126

    13.  AIR 1995 SC 1198

    14.  Recommendations of the Law Commission of India in its 41st report.

    15.  SLP (CRL.) No. 6432 of 2012.

    16.  Criminal Appeal No. 595 of 2013 (SLP (Cri.) No. 8490 of 2012)

    17.  Dated Criminal Misc. No. M- 17586 of 2011

    18.  (2018) 6 SCC 454

    19.  Dated 5th May 2017 in Criminal Application No. 1015 of 2016

    20.  Paragraph 83

    21.  WP (C) No. 1015 of 2018

    22.  Review Petition (Criminal) No. 275 of 2018

    23.  The special judge can be given the powers equivalent to that of a Magistrate under Chapter XV of Cr.P.c, 1973 

    BY- Aditya Gupta | NMIMS University- Kirit P. Mehta School of Law

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