Anitya Sanket
In the recent March 20 judgement in Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra and Anr, the Supreme Court, with respect to Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also widely known as SC/ST Act, issued directions that the arrests under this Act of a public servant can only be made after approval of the respective appointing authority and in case of a non-public officer after the approval of Senior Superintendent of Police (S.S.P) and a preliminary enquiry may also be made to see if the allegations make a case. These directions incidentally come at a time when the country witnessed agitations to scrap the SC/ST Act.
Lamenting that the plight of the lowest of castes and tribes has not changed, and justice remains a distant dream for these classes, amendments to the SC/ST Act were made in 2016. Not only did the amendment address the evolving nature of crimes, for instance social boycotts, but also the accountability of police officials in registration of complaints.
The court expressed apprehensions about the ‘misuse’ of the Act for ‘extraneous purposes’. The low conviction rate appears to have convinced the judges that the Act is being used for settling personal scores in most cases. However, it must be noted that no data is cited to support this contention except for the dubious reliance on the high acquittal rate and the Final Reports (FR) resulting in ‘false’ complaints.
The police send a charge sheet to the court or closes the case as ‘False’ or ‘mistake of law’ under the FR. Prof Stabhir Khora, in assessing the impact of ‘false reports’ on dispensation of justice reports that seven states registered more than 40% cases under SC/ST Act as either ‘false’ or some other category of the FR. Meanwhile, according to the National Crime Records Bureau (NCRB) ‘Crime in India’ report of 2016, eight states in the case of SC’s and four states in the case of ST’s, the police were reported to have registered the cases as ‘false’ in their FR’s between 15% to 51% out of the total cases reported that year, with Rajasthan, notorious for its increasing crime rates against the SC/ST’s, standing at 51.26% and 51.21% respectively.
On ‘false’ reports Professor Khora continues, “While “mistake of fact” does not invite any legal repercussions, “false” invites Sections 182 and 211 of the IPC. However, these sections are recommended in very few FRs. This could be due to the police not wanting to take on additional burden. There is a thin chance of success as the ex-complainant becomes the accused and avails of the “benefit of doubt”. Falsity has to be proved beyond reasonable doubt. Nevertheless, using the label “false” and still not invoking Sections 182 and 211 of the IPC reflects the hostile attitude of the police towards the victims under the SC/ST Act.”
On the one hand, misuse of arresting powers leading to wrongful confinement is made a case to grant anticipatory bail and on the other, the judicial powers of police to declare complaints to be ‘false’ before they reach the courts is accepted as a credible source of rampant abuse by the Supreme Court.
Section 18 of the Act states that Anticipatory Bail provision (section 438 CrPC) shall be excluded from the SC/ST Act. In the court’s view, to deny to innocent individuals anticipatory bail in wake of abuse of law, would infringe their liberty protected by Article 21 and equal treatment in all cases under Article 14. Reliance has been placed, for this, on remarks in numerous judgements and the third report by the national police commission which cite arbitrary arrests as chief source of corruption.
NCSC’s Third Annual Report which was laid in Parliament in 2012, reflecting on the Police apathy recommended inter alia that the Central Government should request the State Governments to ensure that the police officials should be sensitized about the provisions of SC/ST Act in their in-house training programme as well as to organize special training for them, and “The Central Government and the State Governments should ensure that the underlying reasons for ending up the investigation in final report as acquittal of the accused in states where maximum cases are registered under PCR And POA Act need to be studied in depth.”
Successive NCSC reports have consistently noted, “that the police often resort to preliminary investigation upon receiving complaint in writing before lodging the actual FIRs. As a result, the SC victims have to resort to seeking directions from courts for registration of FIRs u/s 156(3) of Cr.P.C.”The third national police commission report, which the court placed reliance on, recognized that on the grounds of offences being non-cognizable, the police sometimes refuse to take cognizance of ill-treatment which the weaker sections go through at the hands of higher castes citing that they have no orders from the magistrate to do the same. It recommended as a result, that section 155 of Cr.P.C be suitably amended to facilitate appropriate police response to non-cognizable offences in two categories: (i) to protect a member of the weaker sections from exploitation and injustice, or (ii) to prevent a possible breach of public peace that might result from absence of effective action on complaint of a non-cognizable offence.
Although one finds a brief mention in the judgement of these systemic barriers for the SC/ST’s in even filing a complaint, the judges nevertheless have remained silent over justice being inaccessible for vulnerable groups at each stage. At a time where growing incidents of crimes against SC/ST’s remain a national shame, the court to one’s shock has pondered over the role of the Act in further perpetuating casteism.
No one contends that the accuser should be taken on his ‘face value’, but one can’t be blind to the social realities either. Instances of Dalit families being stripped in front of police stations, a young man hacked to death for his ringtone praising Ambedkar, over eight-months pregnant woman beaten to death for defiling a Thakur’s bucket where the police conducted a preliminary inquiry and registered FIR two days after the woman died, Dalit couple killed over Rs 15, Dalit youth killed for posing a moustache–growing instances of attacks on inter-caste couples and endless such crimes have become an everyday affair. A country where Dalits are stripped of human dignity and personal liberty every day, diluting provisions of an Act that gives them some hope of crimes not going unchecked, can have disastrous effects.
A trend in higher judiciary overturning cases of conviction in matters of the SC/ST Act has been noted. It was reported that the courts rejected trial in 423 cases on the ground that investigation was conducted by an officer contrary to the Act’s provisions. (pg 38, annual report 2012-13 NCSC) Tendency to apply laws mechanically and ignoring the spirit of the Act could potentially harbor injustice. But it is evident that overwhelming cases of laws being applied mechanically work for non-SC/ST’s. For instance, in Mukesh Kumar Saini &Ors vs State (Delhi Administration) on 6 August, 2001 the court observed, “..humiliating words were uttered while Hanuman being dragged inside before the arrival of neighbours, therefore, these words cannot be said to have been uttered in the “public view”…Merely calling a person by caste would not attract the provisions of this Act. There must be specific accusation alleged against each of the accused…”
The court has directed the judicial authorities to examine the relations between the accused and the complainant, to reflect on the possibility of the case having being filed for extraneous purposes, contrary to the recent amendment that directs the court to presume under Section 6 (ii) (c ):- 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. Would it be judicious to assume that the ones known to the complainant can be free from caste prejudice so as to not have hurled casteist insults? The reasons for the family dispute could very well be caste, which the court refrains from bothering, giving the other side, that is the examination of it being a mere family dispute more emphasis.
Ironically, to fortify the case of rampant misuse, excerpts from Dr. B.R Ambedkar’s speech from constituent assembly was cited. It may be interesting at this point to note Dr. Ambedkar’s observations and concerns on caste prejudice in jurisprudence. “…The third circumstance which adds to the helplessness of the Untouchables is the impossibility for the Untouchables to obtain any protection from the police or justice from the courts. The police are drawn from the ranks of the Caste Hindus. The magistracy is drawn from the ranks of the Caste Hindus. The police and the magistracy are the kith and kin of the caste Hindus. They share the sentiments and the prejudices of the caste Hindus against the Untouchables. If an Untouchable goes to a police officer with a complaint against the caste Hindus instead of receiving any protection he will receive plenty of abuse. Either he will be driven away without his complaint being recorded or, if it is recorded, it would be recorded quite falsely to provide a way of escape to the Touchable aggressors. If he prosecutes his offenders before a magistrate the fate of his proceedings could be foretold. He will never get Touchable witnesses because of the conspiracy of the villagers. If he brings witnesses from the Untouchables the Magistrate will not accept their testimony because they are interested and not independent witnesses or, if they are independent witnesses, the Magistrate has an easy way of acquitting the accused by simply saying that the complainant Untouchable did not strike him as a truthful witness. He can do this fearlessly because he knows full well that the higher tribunal will not reverse his findings because of the well-established rule which says that an appellate court should not disturb the finding of a Magistrate based upon the testimony of witness whose demeanor he had observed.”
Can we confidently say today, after almost seven decades of independence, Dr. Ambedkar’s concerns are unfounded even in today’s times? By giving undue attention to the monetary relief provided by the act to the victims, which in most cases is denied, and complaints being filed merely to obtain it shows limitations of imagination. As the Bombay High Court observed in its decision that penal provisions of the SC/ST Act could not be faulted merely because of possibility of abuse and by doing so, it would amount to sending the wrong message to the downtrodden and backward sections of the society.
The judiciary has been the guardian of people’s constitutional rights and owes great responsibility to make the impact of its judgements felt across the country, which it has time and again. The sections at the lowest rungs of the society entrust the judiciary with the sacred duty of defending the constitutional values in both letter and spirit, and in doing so, making justice accessible to even the weakest of all voices. The state has failed on its part to present in the court of law the reasons for high acquittal in the cases of atrocity in the recent review petition, which the NCSC since several years has endeavored to point out. Being oblivious to trampling down of weaker sections on account of caste and diluting the anticipatory provisions even when regular bail is available to the accused would be emboldening the administration in further trampling voices. In the absence of effective implementation of the Act, the state’s failure to protect the SC/ST’s will have a chilling effect in the reporting of cases.
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Notes
1. On ‘false reports’ which follow from the preliminary inquiry of the police, this article only furthers the study of Prof. Stabhir Khora, which calculates the percentage of cases registered as ‘false’. For further study on how these reports may impact the development of cases registered under the Atrocities Act and 498a, one may refer to his article referenced.
2. Dr. B.R Ambedkar’s quotes referred to above have been from Dr. Babasaheb Ambedkar, Writings & Speeches, Volume 5, Chapter 22 ‘Held at Bay’. I have had the opportunity of getting introduced to these ‘prophetic’ words of Dr. B.R Ambedkar from ‘Judicial Discourse and Caste Violence’ authored by Aditya. For reading one may refer to: http://roundtableindia.co.in/index.php?option=com_content&view=article&id=8765:judicial-discourse-and-caste-violence-2&catid=122&Itemid=138
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Anitya is a student of Law.
Illustration by Unnamati Syamsundar.
