UPSC REVISION: SC/ST (PREVENTION OF ATROCITIES) ACT 1989

20 SUBHASH K MAHAJAN  V/S THE STATE OF MAHARASHTRA

SUPREME COURT RULING ON SCHEDULED CASTES & SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT 1989

ABOUT THE ACT

1. ACT OF PARLIAMENT OF INDIA

2. PREVENT ATROCITIES

3. POA; SC/ST ACT; ATROCITIES ACT

WHY THIS ACT?

1. INADEQUACY OF P.C.R.A. 1955 AND IPC

2. CONTINUING INDIGNITIES AND OFFENCES

3. JUSTICE; DIGNITY; SELF-ESTEEM

4. UNTOUCHABILITY – COGNIZABLE OFFENCE

5. HELP SOCIAL INCLUSION OF DALITS

SALIENT FEATURES OF THE ACT?

1. PROVISIONS OF CRIMINAL LAW:  NUMBER OF SPECIFICALLY DEFINED ATROCITIES

2. RELIEF & COMPENSATION

3. SPECIAL AUTHORITIES FOR IMPLEMENTATION AND MONITORING OF THE ACT

REVIEWING WORKING OF THE ACT:

A committee under the Chairmanship of the Minister of Social Justice was set up after the SCs and STs (PoA), 1989 was passed. That Committee has met, so far, 10 times. The situation in 25 States and 4 Union Territories were reviewed. That committee has expressed that the most important areas of concern are the following five:

1. firstly, the high rate of acquittal;(CONVICTION RATE = 20%)
2. secondly, the high rate of pendency of cases and very low rate of disposal;
3. thirdly, inadequate use of the preventive provisions of the Act, while the punitive provisions are invoked and FIR is registered, preventive provisions are rarely invoked;
4. fourthly, that the committees and other mechanisms provided in the Act have virtually not been put to use; and fifthly,
5. the Act itself may not be deterrent, perhaps it is not being as deterrent as we thought it could be

PRESENT CONTROVERSY

1. SC 20/03/2018: MAHAJAN JUDGEMENT

2. The case in question was in response to an appeal from the Director of Technical Education against whom a Dalit employee had filed a case under the SCs and the STs (Prevention of Atrocities) Act for denying him permission to prosecute the officer who was primarily charged for committing an atrocity.

3. SC EXPANDED SCOPE OF MAHAJAN CASE: “The question which has arisen in the course of consideration of this matter is whether any unilateral allegation of mala fide can be ground to prosecute officers who dealt with the matter in official capacity and if such allegation is falsely made what is protection available against such abuse.”

4. SC GUIDELINES: In the name of protecting innocent non-SC persons from being victimised by false complaints under the SC/ST Act, it laid down three guidelines that nullify key provisions of this law: it removed the bar on grant of anticipatory bail; even though the Mahajan case only concerns public servants, it ruled that where the accused is a non-public servant, the police may make an arrest only after approval by a senior superintendent of police; and it held that before registering an FIR, the police may conduct a preliminary inquiry to ascertain the veracity of the complaint.

5. REVERSES KEY PROVISIONS OF THE ACT: instead of immediately registering an FIR and investigating the accused, the police would now immediately doubt the Dalit and investigate her complaint for veracity, and what’s more, they are required to do so by law.

CRITICAL ANALYSIS OF SC JUDGEMENT

1. ISSUED SPECIAL GUIDELINES WITHOUT GOING INTO THE MERITS OF THIS PARTICULAR CASE.

2. DISTURBING LOGIC: HIGH ACQUITTAL RATES + POOR CONVICTION RATE = FALSE CASES

3. IMPLICATION: ABUSE OF DALITS AN EXCEPTION & ABUSE OF LAW RAMPANT

4. REWRITES ACT – DOMAIN OF PARLIAMENT

5. DETERS FILING OF APPEAL

6. EXAMPLES OF ACQUITTAL OF ALL ACCUSED EVEN IN MASSACRE: Kilvenmani massacre (Tamil Nadu, 1968, 44 Dalits killed), Tsunduru massacre (Andhra Pradesh, 1991, eight Dalits killed), Bathani Tola massacre (Bihar, 1996, 21 Dalits killed), Laxmanpur-Bathe massacre (Bihar, 1997, 58 Dalits killed), Shankarbigha massacre (Bihar, 1999, 23 Dalits killed)

WAY AHEAD:

1. MALAFIDE USE OF LAW SHOULD BE DEALT WITH VIA IPC

2. EXTRAORDINARY NATURE OF INFIRMITY = REQUIREMENT OF EXTRAORDINARY LAW

3. DUE PROCESS OF LAW SHOULD BE FOLLOWED TO SAFEGUARD INTERESTS OF ACCUSED

4. FR UNDER ARTICLE 14/21 BE UPHELD FOR THE ACCUSED

5. BUT ARTICLE 17 BANNING UNTOUCHABILITY AND FOUNT OF POA MUST BE UPHELD TOO

6. NEED TO CHANGE ANTI-DALIT ATTITUDE OF LAW ENFORCEMENT