Why dilution of SC/ST Act by Supreme Court is problematic
The article has been co-authored by Bhargav Oza and Chirag Trivedi.
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The Supreme Court verdict on SC/ST (Prevention of Atrocities) Act became the centre of a political debate just ahead of Dr BR Ambedkar's 127th birth anniversary on April 14, 2018.
At a time Prime Minister Narendra Modi and other BJP leaders chose to pay tribute to Ambedkar by either garlanding his statue and/or making a speech, many Dalit organisations were busy ensuring Babasaheb's statues stay protected from people with an anti-Dalit, saffron ideological mindset and chose to celebrate it as "Protect Constitution Day" instead.
On April 3, 2018, many Dalit organisations declared a call for Bharat Bandh. The call was announced in the wake of Supreme Court's order that diluted Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.
The protest which was meant to oppose the Supreme Court's directive as well as to send a strong message to the Centre to file a review petition, was soon hijacked by political violence which saw at least nine people killed across the country.
What the Act is about
The present Act is an evolved version of previous Acts namely Untouchability (Offences) Act, 1955, which was later revamped as Protection of Civil Rights Act in 1976, and later recognised as Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 and Rules, 1995.
The Act is mainly important because it provides legal protection to SCs and STs against violation of their rights enshrined in the Constitution: prohibition of discrimination on account of religion, race, caste or gender (Article 15); equal opportunities in public services - Article 16; abolition of untouchability - Article 17; rights against exploitation - Article 23; promotion of educational and economic interests of SC/ST; reserved seats for SC/ST in states and Union territories - Article 330; National Commission for SC/ST - Article 336. Through the Act, the Indian state outlines that the intention of the legislature is to work against any kind of "atrocity" that may be committed in the first place, as against intervention after the commission of atrocity.
While the SC/ST (Prevention of Atrocities) Act provided a legal cover to the numerous kinds of "atrocities" that SCs and STs suffer on everyday basis, in reality, its implementation on the ground remained weak.
To study the implementation of the Act on the ground, a research project was carried out by a group of students from Ahmedabad University in 2012-13. The research covered 80 villages of the districts of Kheda and Anand in Gujarat (an atrocity-prone region) and interviewed 100 SC and ST complainants of various atrocities.
Here are the key findings of the study titled, "Understanding Atrocity Act Cover: Effectiveness and Implementation Concerns":
Four Dalit leather tanners were brutally assaulted by cow vigilantes in July 2016. Source: Twitter
There is a deep contradiction between the political equality guaranteed under the Act against the deep social inequalities existing in reality. At every stage of the legal cycle, from registration of FIR to primary investigation, preparation of chargesheet and eventual conviction, the "implementation" remains firmly in the hands of an administration and state which acts more in the interest of the accused rather than the complainant.
For instance, one of the most common event that was identified while interviewing the complainants was the fact that the police mostly did not know under which sections of the Act was the "atrocity" to be registered. It was found that the police would file any "injustice" under provisions of Section 3(1)(x) of the SC/ST Act (intentionally insulting or intimidating with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view) . This happened even if the actual atrocity was more heinous than that punishable under provisions of the section. At times the police did this deliberately, and at times, just out of ignorance.
It is generally known that if a particular crime is of a very heinous nature, the investigation should ideally be done by senior police personnel as they are better trained to be relied upon in investigation of such cases.
In reality, however, almost all the cases are handled by lower rank police personnel.
The study also found that in most cases which could be registered, the prosecutor and sometimes even the judge urged the complainant and the accused to make a "settlement" outside court. It was reported that attempts were made to force such "settlements" on the SCs and STs using fear, intimidation, and blackmail.
Many of the complainants said that the police would ask for the statement of two non-Dalit witnesses at the time of registration of FIR. This was found to be a common practice despite the fact that there is no such provision in the law.
Awareness of the law, on the other hand, was lacking in large number of SC/ST people. The massive under-reporting of such cases is the result of complete or partial lack of awareness among the marginalised communities.
Lack of awareness prevents the complainant from reporting the crime in the first place. It also leaves scope for police to misguide them and other authorities to misguide them. It is because of this lack of awareness that the police were seen simple filing simple complaints instead of FIRs.
Vijay Parmar, director of Janvikas Trust, Ahmedabad noted, "On an average, there are three-four cases being registered in a day, but if we consider actual meaning of 'atrocity', there would be more than 500 cases occurring daily. Many cases go unregistered. Even cases of mass murders go unreported. There is no misuse, actually there is less use."
Recent statistics on Ahmedabad district city civil court indicate that in the 994 FIRs that were filed since 1990, the conviction rate is only seven per cent. As much as 88 per cent accused were found "not-guilty" and 20 per cent cases are still pending. About six per cent cases have been pending for more than three-five years.
Centre's complacency in filing a review petition
The present judgment pronounced by a bench of justices UU Lalit and AK Goel relies upon the low conviction rate in cases filed under the contentious Act. Far from acknowledging the gross under-reportage of atrocities happening on everyday basis, the judgment relies on anecdotal evidence on the low conviction rate.
National Crime Reports Bureau (NCRB) data on cases of atrocities against SC and ST disposed by the courts in 2016 says that there is only a 25.7 per cent conviction rate in the 1,44,979 cases filed by SC complainants under the Act, whereas there is only a 20.8 per cent conviction rate of the 23,408 filed by ST complainants.
The low conviction rate does not mean that rest of the cases that ended in acquittals were based on false charges. Paradoxically, it points towards the procedural fault lines such as police failing to register timely FIRs, shoddy investigations, victim harassment, convincing the complainant to make out of court settlement, etc.
It is strange the Supreme Court judges equated the low conviction rate with the innocence of the accused.
The "automatic arrests" acted as a strong legal cover in the interest of the complainant, but dilution of the Act would provide both the accused and biased police officials to derail the probe and intimidate victims. The judgment makes it mandatory for police officers to acquire a written permission from competent authority.
The bench said a public servant can only be arrested after the approval of the appointing authority. In case of a non-public servant, the approval of the Senior Superintendent of Police (SSP) is necessary.
Even if it is supposed that the low conviction rate is indicative of innocence of the accused, what about the contradictory evidence? Why did the court not take that into account? The NCRB data from 2009 to 2015, suggests that the instances of false cases (of Crimes against SCs) has fallen from 24 per cent in 2009 to 20 per cent in 2014. This means that the verdict has no rational basis in saying that the number of false cases are increasing and innocents are being framed.
Human rights advocate in the Bombay High Court, Mihir Desai, notes: "The highest court of the country should not be applying the method of anecdotal evidence."
The present verdict is clearly against the interest of SC and ST.
Jignesh Mevani, Dalit youth leader and independent MLA from Vadgam called the judgment a "judicial atrocity" against SC and ST in a recent seminar organised in Ahmedabad by Dalit Rashtriya Adhikar Manch and associated organisations.
Akash Arora, a well-known lawyer and former secretary of Supreme Court Bar Association demanded "... nothing less than judicial inquiry of the judgement as well as impeachment of the two judges who passed this order".
Renowned social activist Chandubhai Maheriya noted that "... it is indeed an alarming situation when the prime minister and the CJI of the country start believing in similar ideology."
What is so disagreeable is the suggestion of differential treatment for government and non-government ones suggested in the order. The Supreme Court bench does not clarify grounds on which they have relaxed the law for public servants.
This relaxation is in opposition to the fact that the locale where a significant number of atrocities take place has shifted from social spaces to government offices. The Centre's review petition, which came in early April only after protests against the March 20 order grew, smacks of complacency. The fact that all political parties are involved in mud-slinging by calling one another anti-Dalit only contributes to stealing the attention from the real issue at hand.
If welfare of the SCs and STs is at the heart of all political parties, there is nothing that explains the absence of an ordinance to strike down this order.
(Bhargav Oza is an independent researcher and urban fellow at Indian Institute for Human Settlements for Human Settlements, Bangalore; Chirag Trivedi, who mentored the Kheda and Anand study, is a professor at Ahmedabad University.)