The understanding of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [Hereinafter referred to as the Atrocities Act] must be done from the textual as well as contextual perspective, especially when the statute was enacted with the intention to promote a socially disadvantaged and discriminated class of citizens. Communal violence faced by the said communities is very unique in nature and therefore the ambit of the existing laws like the Indian Penal Code (IPC), ambit fails to encompass the kind of atrocities that these communities are subject to. In fact, ‘atrocities’ was never statutorily defined before 1989. There were several statutes previously enacted, such as the Protection of Civil Rights Act, 1955 and the Untouchability (Offences) Act, 1955, which failed to ameliorate the situation of the said communities who continued to be deprived of their life and property. This was because the reward of punishments under the said Acts weren’t grave enough to deter the perpetrators from inflicting atrocities upon minorities. Even in recent times, these communities are unable to cope with the rest of the society in all the human development indices and atrocities committed against these committees contribute chiefly to this social handicap. These atrocities are not imaginative, real lived realities of a community.
This article seeks to analyse the Atrocities Act after the directives given by the Supreme Court in the Subhash Mahajan judgement. In doing so, the paper seeks to understand the relationship between the Atrocities Act and Criminal Procedure Code, 1973. Thus, the thesis of the paper is that the special law which is generally beneficial for the victims has become detrimental in the case of Atrocities Act due to Judiciary’s interference.
The Atrocities Act provides for the types of crimes and punishment for them. Further, it also provides for the procedure to be followed in the cases of crimes under the Atrocities Act. Clearly, Atrocities Act is a special law which has both substantive law and procedural law elements. In this part of the paper, the authors look at the relation of Atrocities Act with the general law of CrPC. Section 4 and Section 5 of the CrPC become important to understand this relation.
The General Law in the Code of Criminal Procedure provides for the procedure of investigation, inquiry, trial etc. in the cases of offence committed under Indian Penal Code. However, the Government also comes out with the special laws to deal with certain kinds of crimes. The reading of Section 4 and Section 5 of the Code of Criminal Procedure, 1973 [Hereinafter referred to as “the Code”] provides that the special law shall prevail in the cases where the special law provides a special procedure. However, if the special law is silent in some regard then the Code of Criminal Procedure is followed. Therefore, when the special law is clear then the requirement is that the special law is followed. Hence, in this case the Atrocities Act needs to be followed above CrPC.
Recently, in the case of a two judge bench of Justice Adarsh Kumar Goel and U.U.Lalit with the objective of curbing misuse of the Atrocities Act came out with certain procedural safeguards. This paper looks at three such safeguards provided by the Judiciary.
The Court has brought the amendments in the arrest procedure in the Act. There are two legs to it. Firstly, the Court has directed in its judgement that the arrest of public servant can only be done after the written permission of their appointing authority. Practically speaking, the problem with such a move is that it will be very tough to arrest those influential officers who are involved in such acts. For instance, if any IAS or IPS officer is accused of the offence then the permission of the President is required in such case. Secondly, the private citizens accused of similar crime can only be arrested after the Senior Superintendent of Police concerned permits it. However, on the other side in the cases of congnizable offences under the CrPC, the police can arrest the accused without any warrant.
Clearly, the procedure prescribed by the Court makes it harder to arrest the accused. However, that was not the intent of the law-makers because they brought Atrocities Act to protect the downtrodden. However, the real question is whether the current directives of the Supreme Court are helpful in this regard. We might answer in negative very easily.
Preliminary enquiry before FIR
In the verbose judgement that is replete with judicial reasoning based on fallacious interpretation of statute, judicial powers as well as data, the “directions”, make it virtually impossible for any complaint to be registered against those who have committed an atrocity against Dalits. It also serves as a reminder to lack of fidelity to the rule of law because it ‘creates’ procedure of Preliminary enquiry which in effect modifies Lalitha Kumari judgement’s ratio. As per the judgement, if a complaint is against public servant, approval of appointing authority is required while in case the accused is non-public servant the permission of SSP is required pursuant to an enquiry conducted by DSP. This is done under justification of ‘dignity’ and Art 21 jurisprudence under which court has laid down guidelines. However, concerns about the process of reaching a conclusion based on interpretation of material facts prevail. This is because no rationale of expanding the scope to non-public servants is provided while the factual matrix deals with public servants. While Gujarat HC judgement obiters are employed to characterize the statute as source of large-scale persecution of innocent public servants by jealous and malicious complainants, the Supreme Court’s larger bench Balothia judgment is conveniently differed from. Thus, a situation of gross disproportionality between crime and safeguard exists wherein no preliminary enquiry is required in murder/ rape cases but in order to compliant against a case atrocity a strenuous enquiry has to be done.
From the jurisprudential standpoint of Exclusive Legal Positivism propounded by Dr. Brian Bix, the statute is supposed to have authority, in and of itself. Hence, operative section 18 states that section 438 of the Code would not to apply to persons committing an offence under the Act. This implies that anticipatory bail cannot be granted in a case involving the arrest of any person on an accusation of having committed an offence under this Act. In any case, the absolute bar on anticipatory bail kicks in only prima facie case is made up. While the judges are not concerned about regular bail, they are apprehensive about arrest in cases of non-bailable offence due to risk of persecution of an innocent based on a fallacious accusation. This special protective aspect was incorporated for the vulnerable section of complainants who would not be able to pursue the cause as long as the oppressive perpetrator is out of the clutches of law.
Contextual understanding necessitates that this must be analysed after considering the nature of criminal acts outlined in section 3 of the statute which include beggar, sexual harassment, forced electoral practices, legal harassment, forced evictions from property etc. The Subhash Kashinath Mahajan v. State of Maharashtra judgement, in effect, rewrites sec 18 of atrocities act. If there is a malafide prosecution, there can’t be anticipatory bail.
However, the Supreme Court has propounded a diluting effect in consideration of alleged “misuse” of one element i.e. sec 3(ix) of the statute. Hence, the order has ‘under-criminalised’ the whole array of gruesome and undignified acts in a disproportionate manner by a selective consideration of misuse in a specific aspect.
Problem with Judicial interpretation of Data
The analysis of effectiveness of criminalizing statutes in generally done on the basis of rate of convictions. The interpretation, however, needs to account for various factors that impact the conviction rate. The flaw in the recent SC judgment is that it considers the inadequate number of convictions as a sign of ‘misuse’ of the statute. The judges do not seem to be interested in raising questions such as why witnesses are turning hostile, the patriarchal and casteist attitude of police persons, political pressure and manipulations faced by these communities, and the burden of carrying one’s caste throughout one’s life and the humiliation attached to it, as these are the relevant questions to be explored before concluding that the SC/ST Act perpetuates casteism, which is nothing but a farcical argument that mirrors the skewed understanding of how caste operates in India.
Between 2010 and 2016 the number of pending cases rose from 78% to 91% for the SCs and from 83% to 90% for the STs. Only 1.4% and 0.8% of the cases against SCs and STs respectively even came up for trial. We see that majority of the cases ended in acquittals. The Conviction rate took a plunge from 38% to 16% for the SCs and from 26% to 8% for the STs.
It has been noted that these crimes are all characterized by an upward mobility of Dalits and Dalits who have climbed the socio-economic ladder are perceived as threat to the established socio-economic hierarchy and societal framework by the upper castes and inflicting atrocities upon them serves as a means to maintain status quo. Another reason for increasing atrocities is the plunging conviction rates under the Act as well as the high Pendency Ratios.
The Atrocities Act was brought with an objective of protecting the marginalized community of the country. The Act defined certain new kinds of offences which are committed against the SC/ST community of the country. Furthermore, in 2016 by the Amendment Act, the scope of the offences was broadened by the Parliament. This means that the Parliament wanted to keep the procedural elements in the law same but broadened the substantive law elements. However, recently with the Subhash Mahajan case, the judiciary has gone against the intention of the law-makers where it has made the procedure for arrest, FIR and anticipatory bail harder so as to favour the accused. However, in the cases of Atrocities Act, it is the victims who need more safeguards. Therefore, the interference by the Judiciary is in detriment to the victims’ interests. Hence, a special law which is clear and required to be followed is unnecessarily modified by the Judiciary on a wrong understanding of the available data. Hence, there is a need to relook at this decision.
Hemant Gupta is a fourth year student of law at National Academy of Legal Studies and Research, Hyderabad and Himangshu Gupta is a graduate of the National Law School of India University, Bangalore.