Sunday, April 21, 2019

Was the SC right on the anti-atrocities law?

Was the SC right on the anti-atrocities law?

Why in News?

  • In a recent judgment by a two-judge bench of the Supreme Court in S K Mahajan vs State of Maharashtra Case, Supreme Court placed certain requirements on investigating agencies and the courts before taking action against the suspects in cases filed under the SC/ST (Prevention of Atrocities) Act 1989.
  • The Violent protest against the Supreme Court Judgement, caused the loss of 9 lives, shows both state and centre were unaware of the scale and intensity of the agitation.

Chronology of Events:

  • In 2006, an employee, from a Scheduled Caste, with the technical education department of the government of Maharashtra, was given an adverse entry by his superior officers in Annual performance appraisal and confidential report, offended by this, he filed a criminal complaint under the Atrocities Act against the two officers.
  • The investigating officer requested for prosecution sanction against the two accused in December 2010, which was denied by the director of technical education in January 2011 and the complainant then filed an FIR under the SC/ST Act against the director in March 2016 for denying sanction that was beyond his authority, later the director approached the High Court in May 2017 for anticipatory bail and for quashing the FIR but did not get relief.
  • He then approached the Supreme Court in 2017, and on 20 March 2018, the apex court delivered the order that has led to this huge outburst of public anger and lawlessness.

Supreme Court Judgement:

  • Supreme Court ruled that instead of an immediate arrest in a case of alleged harassment, a preliminary inquiry must first be conducted by a deputy superintendent of police within seven days of an incident before taking any action.
  • Supreme Court directed that for the arrest of those accused under the Act who are public servants, approval of the appointing authority is required, and for all other accused, the approval of the SSP.

Analysis:

  • The recent judgement on the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, by the Supreme Court directed the police to verify all the facts of a case before registering a complaint under the Act so as to ensure that justice is done to both the complainant and the accused.
  • In 2014, about 40,000 cases were registered under the Act; in 2015, there was a slight drop; and in 2016, the figures were similar to the 2014 figures. Thus, there was a need for the court to step in so that unwarranted cases are not registered, and innocent people are not implicated.
  • The reasons behind the low conviction, which is 15%, is because cases are registered without proper investigation and a simple accusation leads to an FIR which does not stand scrutiny in a court of law and this exercise is a way to harass people and is a complete waste of time — of both the police and the court.
  • According to the figures provided by the Govt more cases under SC/ST Act has been registered in the village areas where caste identities are strong compared to urban areas where such identities are blurred.
  • Just as a few false rape cases are registered to harass or settle scores under Section 376 of the IPC, it is not uncommon to find the Atrocities Act being similarly misused and every time there is a fight or a dispute in rural pockets, it is given a caste angle and someone or the other gets implicated under the Atrocities Act.
  • The court has taken its cue from a December 2014 report of the Parliamentary Standing Committee on Social Justice and Empowerment, which opined that the Act should have “an inbuilt provision” to protect those falsely implicated under the Act.

Positives of Judgement:

  • Since there is no denying that some people are misusing the act, as the conviction rate under the act is so low therefore,  Supreme court judgement on verification at the preliminary stage is a welcome step and it is in accordance with the principles of the Natural Justice as every person should have fair opportunity to defend himself.
  • The Constitution, drafted by B.R. Ambedkar, premises equality before law, which means that all citizens of the country are equal, including Dalits and Adivasis and Ambedkar also gave us the mantra of Bandhutva (brotherhood), we all should follow it and protect all the citizens of this country.

Negatives/Limitation of Judgement:

  • Critics of the Judgement mention that  as S K Mahajan vs State of Maharashtra Case, 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, so the court could have accepted his appeal and quashed the case while,  it went beyond that and added conditions for admissibility of atrocity cases which amounted to rewriting the Act, thus defying all canons of objectivity and judicial propriety.
  • The judgment effectively neutralises the Act which provided some sense of protection to hapless people against oppressive societal prejudices.
  • Critics mention that the reluctance of the ruling establishment in executing the “Act with teeth” is evident from the fact that its execution came in 1995, after a delay of six years.
  • The misuse of any law including this one can be done by the resourceful people while most of the Dalit population including women and marginalised avoid reporting of the crimes as they feel annoyed with the way police treats the complainants.
  • Studies, such as one by the Centre for Social Justice, Ahmedabad, which have exposed how cases of atrocities result in acquittal due to the anti-Dalit attitude of the law enforcement.
  • The judgement has also been criticised on the ground Of Judicial Overreach as it is not for the Supreme Court to make and amend the Laws.
  • Other infirmities with the system include that in most cases the courts do not apply the Act saying that the crime was not committed because of the caste of the victim as in Khairlanji, among the most infamous caste crimes in history, the court declined to see a caste angle to the massacre and in 2002, in Jhajjhar where five Dalits were lynched by a mob, the Act was not applied on the ground that the accused did not know the caste of the victims.
  • To decide whether the case is true or false is for the judges to examine. How can the police or some official perform this judicial function?
  • Although judgement talks about Article 14 and Article 21, What about Article 17 (Right against untouchability)? Isn’t it a fundamental Right?

Way Forward:

  • It is also a fact that investigating officers do not take cognisance of complaints filed by Dalits and Adivasis, cases must be registered against erring police officers who have either delayed or avoided filing a complaint.
  • Before making up our mind about diluting or strengthening the Atrocities Act, we need better data about the nature and number of cases, the types of accused and their motives, the length of captivity and time taken to grant bail, about convictions, and also acquittals that are often based on informal compromise.
  • Much needs to be done to end caste atrocities and Democratic debate and informed discussion are the only way out.
  • It is also a fact that investigating officers do not take cognisance of complaints filed by Dalits and Adivasis, cases must be registered against erring police officers who have either delayed or avoided filing a complaint.
  • Before making up our mind about diluting or strengthening the Atrocities Act, we need better data about the nature and number of cases, the types of accused and their motives, the length of captivity and time taken to grant bail, about convictions, and also acquittals that are often based on informal compromise.
  • Much needs to be done to end caste atrocities and Democratic debate and informed discussion are the only way out.
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