An alarming trend

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An alarming trend

Monday, 16 November 2020 | Anurag Tiwary

An alarming trend

The judiciary, in the recent past, has diluted the impact of provisions in the quest for clarity and not been sensitive about the societal chain of oppression

The Supreme Court recently held in the Hitesh Verma vs State of Uttarakhand case that, “All insults or intimidations to a person will not be an offence under the SC/ST Prevention of Atrocities Act, unless such an insult or intimidation is on account of the victim belonging to the Scheduled Caste or Scheduled Tribe.” The apex court further held that “an offence under the Act is not established merely on the fact that the informant is a member of the Scheduled Caste (or Scheduled Tribe) unless there is an intention to humiliate a member of the SC or ST (community) for the reason that the victim belongs to such a caste.” The Supreme Court clarified that a key ingredient to prove insult or intimidation is when it is committed in “any place within public view.” It drew a distinction between “public place” and “in any place within public view” and said that if a remark is made inside a building or a place where only some members of the public are present, then it would not be an offence since it is not in public view.

The judgment needs to be read in the context of growing concerns over the misuse of such laws that have been enacted for the socio-economic uplift of the Scheduled Castes (SCs) and Scheduled Tribes (STs) in the country. But before we go into that concern, let us take a brief look and understand the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989. This Act was enacted due to the rising cases of discrimination against members from such groups. The provisions to curb such incidents in the Civil Rights Act, 1955 and the Indian Penal Code were found to be highly inadequate by the legislature.

The Statement of Objects and Reasons of the Act states that, “SCs/STs are denied a number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.” It further goes on to say, “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.” The Act was enacted due to an increase in the disturbing trend of certain atrocities against SC/STs, like compelling them to eat inedible substances, human excreta, attacking men and raping women.

The Act, inter alia, provides for the prevention of commission of offences and atrocities against SCs/STs. It also ensures availability of Special Courts and Exclusive Special Courts for the trial of offences for the relief and rehabilitation of the victims. It seeks to prevent the commission of such offences by way of stringent provisions such as punishment and enhanced minimum punishment for neglect of duties by a public servant, defining various types of atrocities, creating new types of offences and denial of anticipatory bail, among others.

In the last couple of years, concerns over the alleged misuse of the aforementioned legislation have taken centrestage in political as well as legal discussions. Reports have gone on to state that the Act is being used to blackmail innocents by filing false cases against them. In April 2018, a news report said that a Dalit family at a village in Aligarh allegedly misused the Act to make money by filing 10 fake cases in three years.

The Supreme Court in March 2018, while taking note of these concerns, in the SK Mahajan vs State of Maharashtra case, had removed provisions for the automatic arrest of the accused from the Act. This provision was the most contentious among all and was highly debated. The apex court, in its judgment, had instead made conducting a preliminary enquiry mandatory before the registration of an FIR. This led to widespread protests by Dalit and Adivasi groups all across the country. The Central Government then came up with an amendment in the Act to overturn the Mahajan judgment. Following the passage of the amendment, the top court later that year upheld its validity in the Prithviraj Chauhan vs. Union of India case.  Part of the reason why the “misuse” argument gains significant attention is because of the low conviction rates under the Act. It is argued that there is low conviction because of the false cases registered by fake victims. However, Dalit and Adivasi organisations have argued that this is because of the procedural lacunae that exist within the police force and several other administrative branches of the State tasked with the prevention of such crimes.

They also argue, and rightly so, that misuse of any law is inevitable by certain vested groups within any community. However, that cannot be the sole reason to dilute provisions within the legislation that were inserted in order to check systemic discrimination and historical injustices that have been meted out to such groups. They argue that prejudices and behavioural bias against the community make investigation a mere farcical exercise. The police force, most of the times, is either disinterested or inefficient in tackling such cases.

The judiciary, in the recent past, has engaged in acts of judicial dilution, wherein it has entered into the authority of the legislature. The Hitesh Verma judgment is in line with that trend. Apart from placing an undue burden, it also introduces technical prerequisites by asking the victim to prove that the insult by the accused was specifically on account of the victim belonging to the SC/ST community, that there was an intention to humiliate him/her because of his/her caste and that such a humiliation must have occurred in “public view” and not just a “public place.”

While passing a general ruling in a specific case, the court must have taken into account the practical difficulties and the chain of oppression that exists in the status quo against such communities. Three specific issues need to be pointed out. First, the SC/ST community is inadequately represented in our police forces and administration. Reserved positions for them have been vacant for years if State figures are to be believed. Hence, cases concerning them get little or no attention. The accused go unpunished most of the times.

Second, financial inequality in the status quo ensures that those belonging to the SC/ST community don’t get competent legal representation before the courts. Effective legal aid by the State continues to remain a distant dream in India. Third, social as well as systemic oppression against members of the SC/ST community continues to remain a reality in independent India.

India is probably the only country with an egalitarian Constitution that sends manual scavengers from a particular community to “gas chambers to die.” Sadly, instead of becoming more inclusive, tolerant, modern and liberal, India is going backwards. Hence, cow vigilantism, honour killings, social boycotts and caste clashes have increased in the 21st century. On the other hand, ignorance by privileged, upper class society has increased too. These are hard facts and nothing more than that. The purpose of laws like the Prevention of Atrocities Act is to ensure a disruption in the status quo. To unsettle the system and create fear among those who are higher-up — in terms of caste hierarchy, monetarily as well as in the administration. 

If the dreams of the members of the Constituent Assembly and the Constitution have to be realised, our courts must become a lot more conversant with reality. So that such issues are dealt with more sensitively and those choosing to fight their legal battles against discrimination and oppression are not made to feel disillusioned about how our systems react to those who need us the most. This is the least we owe them.

(The writer is from the National Law University, Visakhapatnam)

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