Checks against atrocities

Checks against atrocities

What has happened?

The Supreme Court, in its recent judgment in Subhash Kashinath Mahajan v. State of Maharashtra , has stirred up a debate which is bound to impact the law and policy on the prohibition of the practice of untouchability and prevention of atrocities against Scheduled Castes (SCs) and Scheduled Tribes (STs) in India.

What data show

The empirical question of whether the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is really being misused by the filing of false cases (which is the basis for the judgment) needs to be addressed by looking at the available data

Act needs to be strengthened not weakened

There is plenty of evidence to support the view that the SCs/STs are victims of rising crime each year

• NCRB data show that in the past 10 years, crimes against SCs have risen by 51% (27,070 cases in 2006 and 40,801 crimes in 2016 were reported).
• Against STs it was by 13% (5,791 in 2006 and 6,568 cases in 2016 were reported).
• Studies by the National Law School of India University and Action Aid India have shown that religious, social and other disabilities involving the practice of untouchability continue to be widespread in India.

Inadequate enforcement

• Legislation on untouchability and atrocities against SCs/STs arguably constitutes a radical departure from the usual approach of the criminal justice system
• Unlike other offences, untouchability is an offence under the Constitution — Article 17 prescribes that ‘the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law’
• Article 17 has not succeeded in achieving its mandate largely due to inadequate enforcement, in turn leading to low conviction rates and a huge pendency of cases

Possible solutions

• Even if the ruling on anticipatory bail is to be welcomed as protecting the accused from needless arrest and humiliation on the one hand and as a victory for human rights on the other, whether ordinary police powers of registering a first information report and making arrests in cognisable cases should be whittled down to this extent in atrocity cases is a matter of deliberation
• False and frivolous complaints filed under untouchability legislation could also have been dealt with by other means which include directions for prompt investigation and prosecution of such offences by the police and others under the Indian Penal Code, 1860
• It might have been more appropriate to have left the delicate balancing act between the enforcement of penal laws and the protection of civil liberties to Parliament, the body entrusted with the task of making our laws.