The Scheduled Castes &The Scheduled Tribes Act, 1989

    The caste system has been an inseparable part of Indian society which acts as a prominent dividing factor at both vertical as well as horizontal levels. This system has affected the reach of certain socially backward classes to basic resources and their freedom to choose their occupations and hence ultimately affecting various fundamental rights including the right to equality as well as the right to life and personal liberty. Further, caste-based discriminations sometimes take a violent shape becoming caste-based crimes that tend to shake the roots of a democratic society. By taking into consideration the acts of increasing atrocities against Dalits, parliament enacted “the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989” (hereinafter ‘the Act’) with the idea of preventing caste-based violence and discriminations; and to ensure social inclusion of Dalits in the society. Although the legislatures, as well as the judiciary, have come forward to deal with the issues of caste-based discrimination, the question of social behavior remains the same. This paper will study the concept of caste-based crimes in terms of their socio-legal framework in the Indian scenario. Further, the paper will also try to evaluate the existing laws in this regard and to provide certain recommendations to meet the idea of social justice in society.

    Purpose of the Act

    Despite various measures adopted to improve the socio-economic condition of Scheduled caste or Scheduled tribes, they have remained vulnerable. They are subject to various offences, indignities, humiliations, and harassment. Through the spread of education, some awareness has been created amongst them and they have been trying to assert their rights. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded enforced labors, the vested interest tries to low them down. There has been an increase in the disturbing trends of the commission of certain atrocities. The normal provisions of existing laws like the protection of the Civil Rights Act, 1955 and the Indian Penal Code, 1860 have been found to be inadequate to check these atrocities. Under the circumstances, it was found necessary to enact special legislation to check and deter crimes against Scheduled caste or Scheduled tribes. To achieve this objective, this Act was introduced. Thus the main purpose of the Act is as follows:

      To define atrocities;

     To provide for stringent, preventive, and punitive measures;

      To protect the victims of such atrocities;

    To provide adequate relief and rehabilitation thereof.

    What are Atrocities?

    In a general sense, the term ‘atrocities’ could be understood as an act of cruelty that involves physical injury or violence. Furthermore, ‘atrocity’ means an offence that is punishable under Section 3 of the Act[1]. The Act itself provides for detailed provisions with respect to the acts which constitute atrocities.  Forcing a member of Scheduled Castes and Scheduled Tribes to eat or drink uneatable substances; wrongfully depriving him of his land for cultivation; insulting him publicly, parading him naked or with painted face or body, etc are some of the examples of offences mentioned under the Act.

    Who can be a victim and an offender under the Act?

    Offender: any person not being a member of Scheduled caste or Scheduled Tribe, committing offence listed under Section 3 of the Act, against a member of Scheduled Caste or Scheduled Tribe community.

    Victim: a member of Scheduled Caste or Scheduled Tribe against whom an offence mentioned under Section 3 of the Act has been committed.

    Thus, this Act will not be applicable where both the persons are from Scheduled Caste or Scheduled Tribe. The offender must be a member of a non-Scheduled caste or Scheduled Tribe.

    Nature of punishment for an offence under this Act

    The police officer can arrest the offender without any warrant and investigate the case without any prior orders from the court, as all the offences listed under the Act are cognizable in nature. The Act also provides for both minimum and maximum punishment. In most of the cases, six months of imprisonment being the minimum punishment and five years of imprisonment with a fine being the maximum punishment. Whereas in certain other cases, one-year imprisonment being the minimum and life imprisonment being the maximum punishment.

    Furthermore, the Act also provides for the punishment of imprisonment up to six months, where a public servant, who is not a member of Scheduled Castes and Scheduled Tribe, intentionally neglects his duty, which is to be done under this Act[2]. And if a person who has been already convicted of an offence under this Act, is convicted subsequently, then he shall be liable for imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence[3].

    Fake Complaints

    Indubitably, the Act is a blessing for victims of atrocities. But the fact that this is also being misused in society cannot be denied. There are various instances, where fake complaints were filed by the member belonging to Scheduled Castes and Scheduled Tribes communities. For this purpose, the Supreme Court diluted the provision relating to anticipatory bail, the arrest of the accused, and filing of a complaint in 2018. The Supreme Court observed that:

    Before filing the complaint against any atrocities, an enquiry report by the Deputy Superintendent of Police is required. This is to ensure the genuineness of the case.

      Prior approval of Senior Superintendent of Police before arresting the accused.

    Anticipatory Bail may be given in exceptional cases.

    After the judgment in Dr. Subhash Kashinath Mahajan vs The State of Maharashtra[4], there was a lot of hue and cry amongst the Scheduled Caste and Scheduled Tribes communities. Parliament then passed the Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Amendment Act, 2018, negating the judgment given by the Supreme Court and reinstating the prior provisions of the Act. This resulted in no grant of anticipatory bail, and direct filing of a complaint, and direct arrest of the accused.

    On 1st October, 2019, the Supreme Court reversed its judgment due to the below-mentioned reasons: 

    an entire community cannot be considered as a liar: one person misusing the Act can not imply that the whole community is misusing it. 

    Safeguards required- social realities and discrimination: given the current dynamic of the society, the Schedule Castes and Scheduled Tribes community still faces discrimination, and hence it is extremely essential to provide them such safeguard.

    Such impediments- more discrimination in the legal sense: the prior approval from Deputy Superintendent of Police before filing a complaint and Senior Superintendent of Police before arresting the accused, would mean that the members of Schedule Caste and Schedule Tribes are facing more discrimination leading to injustice.

    Thus, the original provisions of the Act stand by as of today. 

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    Anticipatory Bail and the Offence of atrocity under the Act

    Anticipatory Bail is one which can only be granted by the Court of Session or a High Court prior to the arrest of a person in anticipation of his arrest for a non-bailable offence[5].  In simple words, whenever a person has a reason to believe that there is a chance to get him arrested on false accusation or due to enmity with someone, or he fears that a case is likely to be built up against him, he has the right to move to the Court of Session or a High Court, for grant of bail in the event of his arrest, and the court has the discretion to either grant or refuses to grant the bail.

    Furthermore, in a recent judgment, the Supreme Court in Prathvi Raj Chauhan v. Union of India[6], dated 10th February, 2020, upheld the validity of Section 18-A of the Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Amendment Act, 2018by quashing the directions given in Subhash Kashinath Mahajan v. The State of Maharashtra and another[7]as it placed unnecessary burden upon the people of Scheduled Caste and Scheduled Tribes. In addition to that, the court also stated that the preliminary enquiry before the registration of FIR is permissible only in presence of conditions laid down in Lalita Kumari v. Government of Uttar Pradesh[8]. The Court further held that no anticipatory bail is to be granted under the Amendment Act, 2018. The Court also held that if an accused is a public servant, the arrest can only be made after the approval of appointing authority and in a case where the accused in a non-public servant, an arrest can be made after acquiring permission from the senior Superintendent of Police; also it was observed by Justice Ravindra Bhat, in a concurring opinion, that anticipatory bail can only be granted in exceptional cases.

    Establishment of Special courts under the Act

    According to Chapter IV of the Act, and with the aim of providing speedy trial, the state government with consistency with the Chief Justice of High Court, shall establish a court of session in each district, which is the Special Court to try offences under this Act.

    The above-mentioned Special Courts are not the same as any of the existing Court of Session. And for every such Special Court, a Special Public Prosecutor is to be appointed.

    Rehabilitation and Investigation

    The Central Government has the power to frame rules for the Act [9]. Furthermore, the investigation of offences under the Act can only be carried out by an officer, not below the rank of Deputy Superintendent of Police [10]. Any charge sheet or investigation carried out by any other officer not authorized under the Act would be liable to be quashed [11].

    Moreover, the Act emphasizes upon providing reliefs and rehabilitation to the victim. Thereby, the State Government is empowered to take measures for economic and social rehabilitation of the victims of atrocities. Such power of state government is subject to and without prejudice to the rule made by the central government in this regard [12].

    Conclusion

    Right to equality is a fundamental right guaranteed under the Constitution of India. The supreme law of land requires the state to ensure equality of status and opportunities to every citizen. The atrocities based upon caste are manifestations of the failure of the state to ensure these rights of Scheduled Caste and Scheduled Tribes community members. This Act was enforced with the objectives of providing protective, preventive and rehabilitative measures to these communities so that they could be brought to an equal footing in the society which has been traditionally discriminated against. The Act appears to be a strict law in words but, there are certain drawbacks to its implementation. Since these communities have been discriminated since long, the idea of being inferior has been ingrained in these communities itself. Even though the law is there, they refrain from taking actions. On the other hand, the lack of education and awareness makes implementation of the Act practically difficult. Further, refraining from registering complaints by police authorities and lack of protection to be provided to the victims are certain other matters need consideration.

    REFERENCES

    1. The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, s. 2 (1) (a).
    2. Id., s. 4.
    3. Id., s. 5.
    4. (2018) 6 SCC 454.
    5. The Code of Criminal Procedure, 1973, s. 438.
    6. WP(C) 1015/2018.
    7. (2018) 6 SCC 454.
    8. (2014) 2 SCC 1.
    9. Supra 1, s. 23.
    10. D. Ramlinga Reddy v. State of Andhra Pradesh, CRL.A. 755/1996.
    11. M. Kathiresam v. State of Tamil Nadu, WP(MD) 11849/2016.
    12. Supra 1, s. 22 (2) (iii).

    BY RICHA GUNAWAT  | SYMBIOSIS LAW SCHOOL, PUNE

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