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The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018

Introduction

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2018 was introduced in Lok Sabha by the Minister for Social Justice and Empowerment, Mr. ThaawarchandGehlot, on August 3, 2018. It seeks to amend the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Act prohibits the commission of offences against members of the Scheduled Castes and Scheduled Tribes and establishes special courts for the trial of such offences and the rehabilitation of victims.The preamble of the act correctly describes the object and the reason behind its enactment:

“to prevent the commission of offences of atrocities against the members of Scheduled Castes and Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.”[1]

In March this year, the apex court said people accused of committing an offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, or SC/ST Act, would be arrested only after the approval of a senior superintendent of police and a preliminary inquiry would be conducted to find out if there is a prima facie case against the accused.The Union government brought a new legislation during the monsoon session, which helped restore older provisions of the SC/ST Act, allowing police action against the accused. The amendment states

  • The Bill states that the investigating officer will not require the approval of any authority for the arrest of an accused. 
  • A preliminary enquiry will not be required for the registration of a First Information Report against a person accused under the Act.
  • The SC/ST Act 1989 states that persons accused of committing an offence under the Act cannot apply for anticipatory bail.  The Bill seeks to clarify that this provision will apply despite any judgements or orders of a court that provide otherwise.[2]

Grant of anticipatory bail under SC ST act

Section 18 of the act reads as under:

18. Section 438 of the code not to apply to persons committing an offence under the act -Nothing in section 438 of the code shall apply in relation to any case involving the arrest of any person on an accusation of having committed anoffence under this act.

In State of MP v. RamkrishnaBalothia[3],Hon' ble SC sat upon the constitutional validity of the said section 18 and it was held not to be violative of articles 14 and 21 of the Constitution. It states –

“The offences enumerated under the said Act fall into a separate and special class. Article 17 of the Constitution expressly deals with abolition of "Untouchability" and forbids its practice in any form. It also provides that enforcement of any disability arising out of "Untouchability" shall be an offence punishable in accordance with law……The exclusion of Section 438 of the Code of Criminal Procedure in connection with offences under the said Act has to be viewed in the context of the prevailing social conditions which give rise to such offences, and the perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail.”

The Hon'ble supreme court in Vilaspawar and another v. State of Maharashtra and others[4] 5had an occasion to deal with the question as to whether .he high court or court of session can exercise discretion to grant anticipatory bail when a case was registered against the accused under the provisions of prevention of atrocities act, the supreme court laid down the law in the following terms:

“Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.”

From the judgment of the Supreme Court, it is clear that the court invested with the discretion to grant anticipatory bail is not precluded from examining the contents of FIR/Complaint to find out whether prima facie an offence under the provisions of the prevention of atrocities act is made out.[5]

On March 20, 2018, the bench of AK Goel and UU Lalit, JJ acknowledged the abuse of law of arrest in cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) and said:

“the legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance nor was it intended to deter public servants from performing their bona fide duties.”

The bench had held that an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. Holding that mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive a person of his liberty without an independent scrutiny, the Court issued the following directions:

  • there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.
  • arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
  • to avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
  • any violation of the direction of the Court will be actionable by way of disciplinary action as well as contempt.[6]

As per National Crime Records Bureau statistics, there is no decrease in the crimes against SC/ST people. The number of cases registered under the PoA in 2014 was 47,124, 44839 in 2015 and 47,338 in 2016. In 2014, 28.8% of the cases were convicted. The acquittal was 71.2% and pendency of cases 85.3%. The next year saw 25.8% convictions, 74.2% acquittal and 87.3% pendency. In 2016, the convictions was 24.9%, acquittal 75.1% and pendency 89.3%.[7] The atrocities prevention act is the least bit of safeguard that our lawmakers have provided to the backward classes considering the vast amount of discrimination faced by them in the previous centuries.

 


[1] The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989

[2] “Parliament passes SC and ST (Prevention of Atrocities) Amendment Bill, 2018” available at: https://www.jagranjosh.com/current-affairs/lok-sabha-passes-sc-and-st-prevention-of-atrocities-amendment-bill-2018-1533625956-1 (Last visited 28 June 2019)

[3]1995 AIR 1198

[4]2012 (8)SCC 79

[5]The SC and ST Prevention Of Atrocities Act, 1989 - Latest Judgmentsavailable at:http://www.legalserviceindia.com/legal/article-223-the-sc-and-st-prevention-of-atrocities-act-1989-latest-judgments.html(Last visited 28 June 2019)

[6]DrSubhashKashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243

[7]KrishnadasRajagopal, “Supreme Court refuses to stay amendments to SC/ST Act” The Hindu Jan 24, 2019

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Submitted by Varun Ahuja

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