It was the first week of April 2018. The white clouds blemished the radiant blue colour of the sky. But on that day, it wasn't the blue colour of the sky that made news in India, but the blue flags of Dalit protesters that were soaring high in the sky. The oceans of agitated protesters had flooded the streets to protest against the unjust law that had been cast on them like a spell, by the group of the most revered magicians of the country — the Supreme Court of India. The blue colour of their flags represented the sky which stands as a symbol of non-discrimination, as under the sky everyone is believed to be equal. This is in line with the philosophy of the Constitution as enshrined under Article 14, the custodian and protector of which ironically, is the Supreme Court itself.
Every 15 minutes, a crime is committed against a Dalit. Each day, six Dalit women are raped. Over the past decade (2007-2017), there has been an astronomical growth (66 percent) in crimes against Dalits. Moreover, data from the National Crime Records Bureau (NCRB) on which the Supreme Court's judgment of Dr Subhash Kashinath Mahajan versus State of Maharashtra (that resulted in the chaos in April) was based, shows a two-fold increase in the number of rapes of Dalit women in the past decade. Furthermore, the data also states that charge sheets were filed in as many as 78 percent of the cases, which deems flawed the argument that false cases are being filed due to 'personal vendetta'.
But, despite all the adversities faced by the SC/ST community, the Supreme Court held in the judgment that there is an urgent need to dilute the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 (henceforth, referred to as the Act) so as to avoid the false implication of an innocent. For its execution, it ordered firstly, that there is no absolute bar against grant of anticipatory bail and it can be asked for by an accused under the Act, and therefore it deemed invalid Section 18 of the Act that provides for an absolute bar to grant of anticipatory bail due to the prevailing socio-economic conditions of the discriminated minority in the country.
Secondly, the apex court ordered that the arrest of a public servant can only be made after the approval of the appointing authority and arrest of a non-public servant can be made only after the approval of the SSP. This was done to keep a check on the abuse of the process of law. This judgment led to the Bharat Bandh, in which thousand of Dalit protesters took to the streets to protest against the snatching away of rights by the apex court.
Recently, on 6 August, the Lok Sabha made an amendment to nullify the Supreme Court ruling. The amendment inserted a new provision — Section 18A, which now stipulates that a preliminary inquiry is not required for an arrest to be under the Act. Further, the grant of anticipatory bail would not be available to the person against whom a complaint is made under the Act. This amendment has again been challenged in the Supreme Court by Advocate Sandeep Lamba to declare the amendment, unconstitutional.
Background to the Act
Before delving into the falsity in the decision of the Supreme Court, what is required is to understand why, in the first place, do the SC and ST communities need protection. What has resulted in the enactment of the legislation despite various provisions of the Constitution already protecting the interests of the minorities? To seek the answer for the same, it is imperative to read the Report of the National Commission of SC, that led to the enactment of the ACT. The Commission stated as below:
"Despite various measures to improve the socio-economic conditions of the SCs and STs, they remain vulnerable… They have, in several brutal incidents, been deprived of their life and property… Because of the awareness created… through spread of education etc., when they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the SCs and STs try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty…
Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check and deter crimes against them committed by non-SCs and non-STs… It is considered necessary that not only the term 'atrocity' should be defined, but also stringent measures should be introduced to provide for higher punishment for committing such atrocities. It is also proposed to enjoin on the states and Union Territories to take specific preventive and punitive measures to protect SCs and STs from being victimised and, where atrocities are committed, to provide adequate relief and assistance to rehabilitate them."
The wordings of the aforementioned connote to the dark social reality that exists: The reality that is hard to imagine for the educated privileged class of the society. The report goes on to show that the laws that were in place to protect the interests of the SC/ST community (Protection of Civil Rights Act and the IPC), were not effective to achieve the said purpose. Therefore, other stringent measures were required that could bring justice to the people suffering from the wrath of the social stigma.
This growing need to protect the interests was also recognised by the apex court that held:
"The offences of atrocities are committed to humiliate and subjugate the SCs and STs with a view to keep them in a state of servitude. Hence, they constitute a separate class of offences and cannot be compared with offences under the Indian Penal Code."
Before the enactment of said Act, the Scheduled Castes and Scheduled Tribes, the Untouchability (Offences) Act, 1955 was passed which was renamed to the Protection of Civil Rights Act in 1976. But as it turned out to be ineffective, the Rajiv Gandhi government enacted the much needed Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989. This was in furtherance of the constitutional provisions to abolition of untouchability and establish equality. This was all the more important as the crimes against these communities are demonstrations of hate crimes that go on to show their fundamental nature of prejudice and discrimination. Therefore, the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 was enacted, to provide the suppressed ones, a easy passage to justice.
Supreme Court's blind spot while delivering the judgment
To understand this, what must be agreed upon is the fact that not every person in society stands on an equal pedestal. If this is true, then conversely what should be true is that the principles of equality would protect the person who is on a lower pedestal. In the present case, Dalits are the most suppressed class of people. One might go on and argue that this still does not justify the act of holding an innocent person guilty and not providing him anticipatory bail. But, the simple explanation of this argument lies in social realities rather than the law. In reality, a Dalit from a small town, who is not able to stand up for his rights, needs such protection.
The Dalit who cannot get a police complaint in the first place deserves this protection. The Dalit who is paraded naked, who is forced to put obnoxious substances in his mouth, who is made to be a manual scavenger deserves this kind of protection. All of the aforementioned situations are actually some of the crimes for which an offender is penalised under the Act. One can only remain stupefied at the sort of inhumane atrocities to which these communities are subjected. It is very logical to think that if such particular offences have been mentioned in the Act and subsequently made punishable, then this is the reality that exists, that such offences were and are commonly perpetrated.
If we try to oppose this to one of the few victims of a false case under the Act then firstly, it is only logical to say that this case would only arise in a metropolitan city. Further, the person against whom the case will be filed will still be in a position to file a writ petition for the grant of anticipatory bail. If we compare the odds, what would be just is guided by one's own sense of justice.
Interestingly, in an article by Gaurav Vivek Bhatnagar, he points out the fallacy in logic in the minds of the general populous that the low conviction rate is actually a reflection of how these cases are registered and pursued. He mentions a report titled Hidden Apartheid: Caste Discrimination against India's 'Untouchables' by the Human Rights Watch, which pointed out that the community is frequently subject to "discriminatory treatment in the administration of justice". It went on to add, "Prosecutors and judges fail to vigorously and faithfully pursue complaints brought by Dalits, which is evidenced by the high rate of acquittals in such cases".
The report noted how the police generally failed to "register or properly register crimes against Dalits", and that "Dalits' right to equal treatment before organs administering justice is compromised at the outset".
It is quite strange to note that the apex court did not pay heed to the report of the commission made to look into the atrocities, which summarises the need for the social welfare legislation:
"Whenever the SC or ST victim of atrocity presents a report to the Sub-Inspector or Circle-Inspector in charge of Police Station and if he records an FIR and registers a case, the Sub-Inspector or Circle-Inspector should arrest the assailant or assailants who committed the atrocity on the complaint-SC. But the Sub-Inspector or Circle-Inspector who recorded the FIR, and registered a case did not arrest the assailants except in rare cases. On the other hand, it is stated in their representations that those assailants against whom the SC-victims presented complaints lodge counter reports to the Police against SC-victims and the Sub-Inspectors or Circle-Inspectors register counter cases against the SCs (victims) and arrest them. When a counter report is presented by the assailant who is the accused in the report presented by the SC-victim, it was filed obviously with the sole intention to counter blast the complaint filed by the SC-victim. As a result of the counter cases, the real SC victims of the atrocities are being arrested and subjected to criminal litigation as accused in the counter cases."
We need to understand that for the scores of Dalits who face atrocities on a daily basis, getting an FIR registered is a herculean task. The fact that for an underprivileged person, the very first step in criminal proceedings, which is the registration of an FIR, is in itself a huge challenge as police officers refuse to do so. A walk down memory lane would show us that the Supreme Court itself has had to pass several orders to make registration of FIRs compulsory in such cases.
Moreover, if we look at the restrictions that can be placed on the grant of anticipatory bail, then it will be found that it is a statutory right, meaning thereby, that it is not a right to which you are entitled by birth. The right is a creation of the legislature and can be taken back as easily as it can be granted under any statute. This can be quite literally be seen through state amendments in the criminal procedural law, where in Uttar Pradesh, the state has not provided the right of anticipatory bail for any offence whatsoever. Hence, taking away this right through a special law like the Atrocities Act can hardly pose a judicial problem.
The concept of anticipatory bail was introduced for the first time on the recommendation of the 41st Law Commission in 1973 and therefore, it is a right that is not imperative to a person's existence. Further, the same type of exclusion is present in other statutes as well. The constitutionality of this was challenged with respect to the Terrorist and Disruptive Activities (Prevention) Act (TADA, for short), which like the Atrocities Act is also a special law. The Constitutional Bench of the apex court in the Kartar Singh case , held that the exclusion was valid. The Atrocities judgment has only made a passing reference to the aforementioned judgment and has not really looked into the essence of why anticipatory bail was to be denied in such social welfare legislations.
In a constitutional sense, it is apparent that in such cases where two rights conflict, ie the protection of civil rights and the protection of minorities against atrocities, Articles 14, 19 and 21 (which grant civil liberties) are only to be read with respect to their intersection with Articles 15 and 17 (which strictly prohibit the practices of discrimination and untouchability). The doctrine of proportionality is applied to such cases wherein it is seen by the court that which right should be upheld in the present case scenario. These articles of the Constitution are not discussed in the judgment at any point, with reference to discrimination on the basis of caste. In its place, comparisons are made between the penal provisions of the Atrocities Act and those of the Unlawful Activities (Prevention) Act, TADA and offences under the Narcotic Drugs and Psychotropic Substances Act — particularly, in terms of anticipatory bail.
In discussing the rationale behind the Atrocities Act, it is shocking to see how the judges of the Supreme Court forgot that this division of society along the lines of caste, is not a shameful past, but our present reality.
Can the Supreme Court adopt such a dogmatic view of a specific class of complainants, when each one of them belongs to the most historically oppressed sections of the society? Can we really be allowed to ignore the fact that these complaints come to court under a legislation which was enacted for providing them with protection against structural violence and discrimination with the complainants being parts of groups that have been rendered vulnerable by those in positions of power while they are deeply entrenched in this prison of their own identity?
In the end, it can only be said that one who comes from a certain privilege can never understand the point of view of the underprivileged. A mentally sound man can never fully understand the voices heard by a schizophrenic person. An educated man can never fully understand the casual sexism that he involuntarily promotes. A rich man can never fully understand the plight of a poor man and similarly, most of us, sitting comfortably on our couches can never understand the plight of the lakhs of Dalits living in far off Indian villages and therefore can never convince ourselves with a valid justification of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
Raghav Pandey is an assistant professor of Law at Maharashtra National Law University, Mumbai
Neelabh Bist is a fourth year student of Law at Maharashtra National Law University, Mumbai
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Updated Date: Aug 29, 2018 12:37:37 IST