Amendment to SC/ST (Prevention of Atrocities) Act

Context

Union Cabinet has approved the amendment to SC/ST (Prevention of Atrocities) Act, 2018

Background

• Dalits (SC) and Tribals (ST) are the most marginalized sections of Indian society. Many atrocities have been committed against them since time immemorial.
• Article 17 of the constitution abolishes the practice of untouchability.
• The untouchability (offences) Act, 1955 was passed in parliament. In 1976, it renamed as protection of civil right act.
• It makes untouchability a punishable offence

Other Constitutional provisions

• Article 46 –  promote the educational and economic interests of SCs, STs, and other weaker sections of the society and to protect them from social injustice and exploitation
• Article 338 – National Commission for Scheduled Castes
  • investigate and monitor all matters relating to the constitutional and other legal safeguards for the SCs and to evaluate their working;
  • inquire into specific complaints with respect to the deprivation of rights and safeguards of the SCs;
• 338-A – National Commission for Scheduled Tribes
  • Its functions are same as that of NCSC, but with respect to ST than SC

Prevention of Atrocities Act, 1989

Owing to the ineffectiveness of Protection of civil right act and Indian penal code, ‘Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act’ in 1989 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules in 1995 came into existence

Salient Features

• Creation of new types of offences not in the Indian Penal Code (IPC) or in the Protection of Civil Rights Act 1955.
• It punishes crimes against people belonging to Scheduled Castes and Tribes.
• It gives special protections and rights to victims.
• It sets up courts for fast completion of cases.
• Commission of offences only by specified persons (by non-SCs on SCs and non-STs on STs).
• Punishment for neglect of duties for public servant
• Denial of anticipatory bail
• Provides compensation, relief and rehabilitation for victims of atrocities or their legal heirs.
• Creation of Special Courts and special public prosecutor
• Mandatory, periodic monitoring system at District, State and National level
• Identification of atrocity prone areas

Prevention of Atrocities (Amendment) Act, 2015

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 to ensure more stringent provisions for prevention of Atrocities against Scheduled Castes and the Scheduled Tribes

Salient Features

• New offence of atrocities are added
• Establishment of Exclusive Special Courts and specification of Exclusive Special Public Prosecutors also, to exclusively try the offences under the PoA Act to enable speedy and expeditious disposal of cases.
• Power of Special Courts and Exclusive Special Courts, to take direct cognizance of offence and as far as possible, completion of trial of the case within two months, from the date of filing of the charge sheet.
• Defining clearly the term ‘wilful negligence’ of public servants at all levels, starting from the registration of complaint, and covering aspects of dereliction of duty under this Act.
• If the accused was acquainted with the victim or his family, the court will presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise.

SC judgment On SC/ST act, 2018

• In SubhashKashinath Mahajan vs The State of Maharashtra (Review of SC/ST Prevention of Atrocities Act) Case, Supreme Court opined that SC/ST Prevention of Atrocities Act (PoA act) is being misused and checks are needed to prevent such misuse.
• Apex court also observe that the act has become a tool to persecute innocents and public servants for political and personal gains.
• This claim has been validated by Parliamentary Standing Committee report, which has sought an inbuilt provision in the PoA act to safeguard those who are falsely accused.

Key guidelines

• The bar on anticipatory bail under the Act need not prevent courts from granting advance bail if there is no merit in a complaint
• There can be an arrest only if the appointing authority (in the case of public servants) or the district superintendent of police (in the case of others) approves such arrest
• No FIR should be registered against government servants without the approval of the appointing authority.

Issues with Judgment

• The SC has only directed to prevent the misuse of PoA act but it is perceived as dilution of PoA act.
• Many law experts are of the view that this judgment is without considering the socio-cultural realities of caste atrocities.
• Many critics argue that SC judgment mayhelp to introduce a norms to prevent quick action on complaints. It is argued that it will further delay the investigation
• NCRB data shows that under SC/ST (PoA) Act, 1989 the conviction rate was only 15.4% while the charge sheeting rate is 77%. This indicate that it’s not the misuse of act but poor implementation of Act which failed to create a deterrence

• With the perceived upward mobility of SCs, there has been a growing demand among dominant and upper castes to dilute PoA act. This judgment can be used as a plank by these castes to further their agenda.

SC/ST Amendment Act, 2018

Recently, Cabinet has approved the SC/ST (PoA) Amendment Bill 2018, which restores the original provisions to prevent atrocities against the SCs/STs.

Key features

• The amendment bill seeks to restore the power of the investigating officer to arrest an accused who is alleged to have committed atrocities against SCs/STs.
• It rules out any provision for anticipatory bail for the accused
• It provides that no preliminary enquiry will be required for registering a criminal case (FIR) and an arrest under this  law would not be subject to  any approval

Reason for amendment

• Alleged potential of misuse would not deserve to be considered as a valid, justifiable or permissible ground for reading down stringent provisions of the PoA (Prevention of Atrocities) Act, 1989.
• In the face of growing atrocities against SCs/STs, aggrieved persons may now think twice before registering a complaint, as the process is backed by checks which prevent the automatic arrest of an accused.
• The changes focus on protecting the liberty of the accused and can dilute the rights of the complainant.

Key Issues

• Two key issue with PoAAct is misuse of provision and weak implementation, critics argue that restoring the original provision would not solve either of the issue with PoA Act
• As per Report, Governmentis planning to bring the SC/ST act under ninth schedule of constitution which bars the court from review. Critics argue that it would stop the judicial respite for individual who suffered due to misuse of PoA act
• It is being argued that government bring amendment to the bill due to pressure from various corner rather than on merit of the Act

Way Ahead

• Government should do proper consultation with all stakeholders before bringing any amendment to the bill
• Government should focus on implementation strategy. There should be proper investigation and speedy trial for the victims belonging to SC/ST community. This will help to build confidence among the marginalized section of the society
• The government should took measure to increase the participation of people from SC/ST community in decision making and government functioning.
• The government should also took steps for the upliftment of SC/ST through their meaningful integration into society, by giving adequate capacity building opportunities through education, employment etc.
• The most important thing for ending discrimination and improving fraternity is a persistent societal action to change the entrenched caste rigidity. SC/ST Prevention of Atrocities Act (PoA act) as a tool in this endeavour rather than an end in itself.