A petition challenging Parliament’s decision to pass the amendment to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, was filed yesterday by two advocates, Prathvi Raj Chauhan and Priya Sharma. The amendments had come following the controversial Judgement of the Supreme Court on March 20 this year, which restricted the Act's provisions. The Judgement was seen as regressive, and was followed by widespread protests across the country, mostly led by the Scheduled Caste (SC) community.
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On August 9, the Rajya Sabha passed the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2018. The Lok Sabha had passed it three days earlier. The amendment introduced section 18A into the Act;
18 A. i) For the purpose of this Act, -
- Preliminary enquiry shall be required for registration of a First Information Report against any person; or
- The investigating officer shall not required approval for the arrest, if necessary, of any person,
Against whom an accusation of having committed an offence under this act has made and no procedure other than that provided under this Act or the code shall apply.
ii) The provisions of section 438 of the code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any court.
This amendment was made necessary as the Supreme Court in the matter of Dr. Subhash Kashinath Mahajan v. The State of Maharashtra and Anr.had made it mandatory for preliminary investigations to be conducted before the First Information Report could be recorded. The decision had laid down extensive guidelines adding an extra layer of procedure which would hamper the objectives of the Act.
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The petitioners alleged throughout the petition that the amendments were the result of the Union Government's 'vote bank politics'. In this regard, they used the Shah Banocase as an example of how Parliament undoes the decisions of the Supreme Court. In 1985, the Supreme Court had made it mandatory for the man to pay maintenance to his divorced wife under section 125 of the Code of Criminal Procedure. However, some sections of the Muslim community were incensed by what they perceived to be 'interference' in their personal law. The then government quickly passed a law exempting Muslims from complying with this legal provision.
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Perhaps the part of the petition which best summarises its general trajectory is:
“In some part one community is at the helm in social structure while in another part another community enjoys the higher status, The general community of this country is living in this country as second grade citizen which don’t have any rights for last 800 years, when Muslim rule came in power for over almost 600 years, all Hindu's were treated like second grade citizen. It doesn't matter whether they are of high caste or low caste, in the same manner as the Britishers did with us over 200 years. so on an average general community have also faced the same problem as the other's faced, after the independence of country it was in mind that those are having progressive mindset would be allowed to live in batter environment but the government has failed to secure equality before law instead to take onus of failure the government stated appeasing some sects of the communities which resulted in cast, religion or region based politics. The impact of this politics is the innocents are suffering. Not a single policy exists in this country for the betterment or rehabilitation of the weak sections of general community, however many laws are here those already presumed the guilt of general category person. Although we general caste people are now habitual of all these discriminatory acts made by the Legislature, moreover after amendment in SC/ST act, this government also tried to snatch the fundamental rights provided by the constitution of India.”
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The petition alleged that the Act is misused, and has become an instrument of blackmail. To buttress this claim, the petitioners referred to Rule 12(4) of the Rules framed under the Act which provides for monetary compensation to the victim upon registering a complaint under the Act.
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They stated that restricting anticipatory bail violates the right to life and personal liberty. This contention is not quite right, as there are multiple laws under which anticipatory bail can be denied. As these laws pertain to serious offences, one can see how seriously the offences under the Act have been taken.
They also claimed that the principle of 'innocent until proven guilty' is violated, as arrest carries social implications. The problem with this argument is that it is based on social perceptions. The petitioners stated that most people do not know the difference between being detained in either police or judicial custody, and serving a prison sentence. However, a person, who has been accused of murder, could also be detained until acquitted by a court.
In this regard, they asserted that prior scrutiny, proper investigation, credible information and reasonable procedure is required before an arrest. The problem here is that due to the existing power asymmetry between members of the SC and ST communities on one side and the 'others', there is a likelihood of the accused influencing the investigation. This would become more apparent when the investigating officers belong to the same community as the accused.
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The petitioners cited low conviction rates as proof of the Act's misuse. However, low conviction rates reflect equally poorly on the investigation. For example, rape has a poor conviction rate. Does it mean that the provisions against rape have been misused?
The petitioners also questioned why there were no penal provisions provided in the Act against its misuse. This particular question becomes a non-issue once again when the power asymmetry is considered. A botched investigation could as easily result in a judge dismissing the case as frivolous. When the local investigators are likely to continue holding on to caste prejudices, it is not improbable that the conviction rate is low, add to this penal provisions for 'frivolous' cases, and the Act can be turned into a weapon against the very class of people it is purported to protect.