Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and Rules 1995
Citation	Official Act
Enacted by	Parliament of India
Date enacted	11 September 1989
Date commenced	31 March 1995 (Rules notified)
Amendments
23 June 2014 (Rules amended, compensation enhanced) and 8 November 2013 (Sub-divisional vmcs and nominees)
Repealing legislation
4 March 2014 Ordinance (overhaul: new sections, chapters and schedules added)
Summary
Preventing atrocities against the members of the scheduled castes and scheduled tribes
Keywords
Caste, Dalit, POA, SC/ST Act, Atrocities Act
Status: In force

The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 an Act of the Parliament of India enacted to prevent atrocities against scheduled castes and scheduled tribes. The Act is popularly known as POA, the SC/ST Act, the Prevention of Atrocities Act, or simply the Atrocities Act.

Article 17 of Indian Constitution seeks to abolish 'untouchability' and to forbid all such practices. It is basically a "statement of principle" that needs to be made operational with the ostensible objective to remove humiliation and multifaceted harassments meted to the Dalits and to ensure their fundamental and socio-economic, political, and cultural rights.

This is to free Indian society from blind and irrational adherence to traditional beliefs and to establish a bias free society. For that, Untouchability (Offences) Act 1955 was enacted. However, lacunae and loopholes impelled the government to project a major overhaul of this legal instrument. From 1976 onwards the Act was revamped as the Protection of Civil Rights Act. Despite various measures adopted to improve the socio-economic conditions of the SCs and STs they remain vulnerable and are subject to various offences, indignities and humiliations and harassment. When they assert their rights and against the practice of Untouchability against them the vested interest try to cow them down and terrorize them. Atrocities against the SCs and STs, still continued.

The normal provisions of the existing laws like, the Protection of Civil Rights Act 1955 and Indian Penal Code have been found inadequate to check these atrocities^[1] continuing the gross indignities and offences against Scheduled Castes and Tribes. Recognizing these, the Parliament passed ‘Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act’, 1989 & Rules, 1995. The statement of objects and reasons appended to the Bill while moving the same in the Parliament, reads

“despite various measures to improve the socioeconomic conditions of SCs & STs, they remain vulnerable. They 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 atrocities are committed against them for various historical, social and economic reasons.”

The preamble of the Act also states that the Act is

“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 offenses and for matters connected therewith or incidental thereto.”

Thus objectives of the Act clearly emphasize the intention of the Government to deliver justice to these communities through proactive efforts to enable them to live in society with dignity and self-esteem and without fear or violence or suppression from the dominant castes. The practice of untouchability, in its overt and covert form was made a cognizable and non compoundable offence, and strict punishment is provided for any such offence.

The SCs and STs (Prevention of Atrocities) Act, 1989 with stringent provisions (which extends to whole of India except the State of Jammu & Kasmhir) was enacted on 9 September 1989. Section 23(1) of the Act authorises the Central Government to frame rules for carrying out the purpose of the Act. Drawing power from this section, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules of 1995 were framed.^[2] The rules for the Act were notified on 31 March 1995.

The purpose of the Act was to help the social inclusion of Dalits into Indian society, but the Act has failed to live up to its expectations admitted by the Union Minister for Home Affairs in parliament on 30 August 2010 (quoted below).^[3]

Historical sketch

In modern times, atrocities against the Scheduled Castes can be traced back to the 19th century in parts of India when the systemic practice of ‘untouchability’ began to be challenged by the ‘Untouchables’. A Committee which toured British India in the 1920s to review the working of the Government of India Act 1919 noted that many atrocities were being committed during those days against the ‘Untouchables’, but were going unnoticed and unpunished because witnesses would not come forward to give evidence. Dr BR Ambedkar, then MLC of Bombay, cited some early instances of atrocities against Dalits in his submission to the Indian Statutory Commission (Simon Commission) on behalf of the Bahishkrita Hitakarini Sabha on 29 May 1928.

The post-Independence era was marked by frequent instances of atrocities springing up across the country: for example, the assassination of the young, educated Dalit leader Emmanuel Sekaran in Tamil Nadu for defying the untouchability-based interdicts on SCs, which resulted in the Ramanathapuram riots of 1957; the Kilavenmani massacre of 42 Dalits in 1968 in Tamil Nadu; the gruesome killing of Dalit Kotesu in Kanchikacherla in 1969 in Andhra Pradesh; the killings of 10 STs by police in connection with a land dispute in Indravalli in Andhra Pradesh in 1978. All such events shook the then national leadership. Hence, under pressure from Dalit MPs, the Government of India started monitoring atrocities against SCs from 1974, and in the case of STs from 1981 onwards, with special focus on murder, rape, arson and grievous hurt.

Atrocities continued to rise with ferocity and frequency – for example, in Bihar the massacres of SCs at Belchi in 1979 and at Pipra in 1980; in Uttar Pradesh the massacre following a SC bridegroom riding on horseback at Kafalta in 1980; in Madhya Pradesh the killing of Bacchdas in Mandsaur district in 1982; in Bihar the killing in police firing on 15 STs at Banjhi in Sahibganj district in 1985. In all such cases, the Indian State at both the national and state levels avoided addressing basic contradictions, vulnerabilities and causative factors; the treatment was mainly symptomatic and palliative instead of the required radical solutions. Under continued pressure from Dalit MPs and political leaders, the magnitude and gravity of the problem was finally recognised by Prime Minister Rajiv Gandhi. In his Independence Address on 15 August 1987, he announced that an Act would be passed, if necessary, to check atrocities.^[4]

Necessity

Atrocities rooted in caste system

A study conducted by the National Commission for SCs and STs in 1990 on Atrocities on Scheduled Castes and Scheduled Tribes: Causes and Remedies pointed out various causal factors for atrocities: land disputes; land alienation; bonded labour; indebtedness; non-payment of minimum wages; caste prejudice and practice of untouchability; political factions on caste lines; refusal to perform traditional works such as digging burial pits, arranging cremations, removing carcasses of dead animals and beating drums; etc. The deep root for such atrocities is traceable to the caste system, which “encompasses a complete ordering of social groups on the basis of the so-called ritual purity. A person is considered a member of the caste into which s/he is born and remains within that caste until death….”^[5]

Considered ritually impure, SCs have been physically and socially excluded from mainstream society, denied basic resources and services, and discriminated against in all areas of life. Accordingly, they face various forms of exploitation, insults and violence, as well as degrading practices of untouchability. The Scheduled Tribes were equally exploited on grounds of not falling within the caste system but having a distinct culture and worldview of their own. “Women belonging to these castes and tribes bore double burden. They were exploited by caste and gender, and were vulnerable to and powerless against sexual exploitation.”^[6]

Continuing widespread prevalence

Despite the right to non-discrimination on the basis of race or caste enshrined in Article 15 of the Indian Constitution, discrimination against SCs and STs is pervasive. Though abolished and forbidden by Article 17, the practice of ‘untouchability’ persists due to its systemic character. Hence, the Indian Parliament enacted the Untouchability Offences Act 1955, which underwent amendment and renaming in 1976 to become the Protection of Civil Rights (PCR) Act. Under this Act, ‘untouchability’ as a result of religious and social disabilities was made punishable. However, due to legal loopholes, the levels of punishments being less punitive as compared to those of the IPC, and the law and order machinery being neither professionally trained nor socially inclined to implement such social legislation, a more comprehensive and more punitive Act was required to protect SCs and STs from violence committed by other communities. This gave rise to the SC/ST (PoA) Act 1989.

Objectives

The basic objective and purpose of this more comprehensive and more punitive piece of legislation was sharply enunciated when the Bill was introduced in the Lok Sabha:

“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 victimized and, where atrocities are committed, to provide adequate relief and assistance to rehabilitate them.”^[7]

The objectives of the Act, therefore, very clearly emphasise the intention of the Indian state to deliver justice to SC/ST communities through affirmative action in order to enable them to live in society with dignity and self-esteem and without fear, violence or suppression from the dominant castes.^[8]

The Supreme Court of India too reiterated the significance and importance of the Act:^[9]

“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.”

Salient features

The provisions of SC/ST Act and Rules can be divided into three different categories, covering a variety of issues related to atrocities against SC/ST people and their position in society.

• The first category contains provisions of criminal law. It establishes criminal liability for a number of specifically defined atrocities, and extends the scope of certain categories of penalizations given in the Indian Penal Code (IPC).
• The second category contains provisions for relief and compensation for victims of atrocities.
• The third category contains provisions that establish special authorities for the implementation and monitoring of the Act.

The salient features of the Act are

1. Creation of new types of offences not in the Indian Penal Code (IPC) or in the Protection of Civil Rights Act 1955 (PCRA).
2. Commission of offences only by specified persons (atrocities can be committed only by non-SCs and non-STs on members of the SC or ST communities. Crimes among SCs and STs or between STs and SCs do not come under the purview of this Act).
3. Defines various types of atrocities against SCs/STs (Section 3(1)i to xv and 3(2)i to vii).
4. Prescribes stringent punishment for such atrocities (Section 3(1)i to xv and 3(2)i to vii).
5. Enhanced punishment for some offences (Section 3(2)i to vii, 5).
6. Enhanced minimum punishment for public servants (Section 3(2)vii).
7. Punishment for neglect of duties by a public servant(Section 4).
8. Attachment and forfeiture of property (Section 7).
9. Externment of potential offenders (Section 10(1), 10(3), 10(3)).
10. Creation of Special Courts (Section 14).
11. Appointment of Special Public Prosecutors (Section 15).
12. Empowers the government to impose collective fines (Section 16).
13. Cancellation of arms licences in the areas identified where an atrocity may take place or has taken place (Rule 3iii) and seize all illegal fire arms (Rule 3iv).
14. Grant arms licences to SCs and STs (Rule 3v).
15. Denial of anticipatory bail (Section 18).
16. Denial of probation to convict (Section 19).
17. Provides compensation, relief and rehabilitation for victims of atrocities or their legal heirs (Section 17(3), 21(2)iii, Rule 11, 12(4)).
18. Identification of atrocity prone areas (Section 17(1), 21(2)vii, Rule 3(1)).
19. Setting up deterrents to avoid committing of atrocities on the SCs amongst others (Rule 3i to 3xi).
20. Setting up a mandatory, periodic monitoring system at different levels (Section 21(2)v):

• District level (Rule 3xi, 4(2), 4(4), 17).
• State level (8xi, 14, 16, 18).
• National level (Section 21(2), 21(3), 21(4)).

Together with the rules, it provides a framework for monitoring the state response to the atrocities against Scheduled Castes and Scheduled Tribes. According to the Act and Rules, there are to be monthly reports (from the District Magistrates), quarterly review meetings at the district level by the District Monitoring and Vigilance Committee (DVMC) and half yearly reviews by a 25-member State Monitoring and Vigilance Committee (SVMC) the chaired by the Chief Minister. The performance of every Special Public Prosecutor (SPP) will also have to be reviewed by the Director of Public Prosecutions (DPP) every quarter. Annual reports have to be sent to the central government by 31 March every year.

The Act and Rules are a potent mechanism and precision instruments that can be used in tandem with the Right To Information (RTI) Act 2005 to motivate the state to hold the mandatory meetings and enforce compliance. A Human Rights Defenders Monitoring Calendar has been developed from the Act and rules to help human rights defenders, and others to clarify the functions and duties of the monitoring authorities (the SVMC and DVMC).

Defining 'atrocity'

The term 'atrocity' was not defined until this Act was passed by the Parliament in 1989. In legal parlance, the Act understands the term to mean an offence punishable under sections 3(1) and 3(2).

In specific terms:

1. Atrocity is “an expression commonly used to refer to crimes against Scheduled Castes (SCs) and Scheduled Tribes (STs) in India”.
2. It “denotes the quality of being shockingly cruel and inhumane, whereas the term 'crime' relates to an act punishable by law”.^[10]
3. It implies “any offence under the Indian Penal Code (IPC) committed against SCs by non-SC persons, or against STs by non-ST persons. Caste consideration as a motive is not necessary to make such an offence in case of atrocity”.^[11]
4. It signifies “crimes which have ingredients of infliction of suffering in one form or the other that should be included for reporting”. This is based on the assumption that “where the victims of crime are members of Scheduled Castes and the offenders do not belong to Scheduled Castes caste considerations are really the root cause of the crime, even though caste considerations may not be the vivid and minimum motive for the crime”.^[12]

The Act lists 22 offences relating to various patterns of behaviours inflicting criminal offences for shattering the self-respect and esteem of SCs and STs, denial of economic, democratic and social rights, discrimination, exploitation and abuse of the legal process, etc.^[13]

Section 3 of the Act lists the criminal offences and the punishments. It contains:

• 19 offences in their own right (Section 3(1) contains 15 subsections with an equal number of offences. Section 3(2) contains four subsections with offences)
• two derived offences (sections 3(2)(vi) and 3(2)(vii)). The derived offences are based on the offences given in the SC/ST Act. They only come in the picture provided that another offence under the SC/ST Act has been committed.
• one subsection that increases the punishment for certain offences under the IPC (Section 3(2)(v)).

These protections can be broadly divided into protection from

• social disabilities (denial of access to certain places and to use customary passage and to get water from any spring, reservoir or any other source).
• personal atrocities (forceful drinking or eating of inedible or obnoxious substance, against stripping, outrage of modesty, sexual exploitation, injury or annoyance).
• atrocities affecting properties (land, residential premises, existing properties).
• malicious prosecution.
• political disabilities.
• economic exploitation.

The common denominator of the offences is that criminal liability can only be established if the offence is committed by a person who is not a member of a Scheduled Caste or a Scheduled Tribe against a person who belongs to a Scheduled Caste or a Scheduled Tribe.

Special Courts

For speedy trial, Section 14 of the Act provides for a Court of Session to be a Special Court to try offences under this Act in each district. Rule 13(i) mandates that the judge in a special court be sensitive with right aptitude and understanding of the problems of the SCs and STs.

However, that is seldom the case. Most states have declared a court as a 'special court'. The hitch is that they are designated courts (as opposed to exclusive special courts) and so have to hear many other cases too. Consequently, at any time about 80% of the cases are pending^[14]—defeating the very purpose of having special courts in the first place.

Special Court Justice Ramaswamy observed in the case of State of Karnataka v. Ingale^[15] that more than seventy-five percent of the cases brought under the SC/ST Act end in acquittal at all levels. The situation has not improved much since 1992 according to the figures given by the 2002 Annual Report dealing with SC/ST Act (of the Ministry of Social Justice and Empowerment)^[16] Of the total cases filed in 2002 only 21.72% were disposed of, and, of those, a mere 2.31% ended in conviction. The number of acquittals is 6 times more than the number of convictions and more than 70 percent of the cases are still pending.^[17]

Inaugurating a two-day annual conference of State Ministers of Welfare/Social Justice, 8 Sept 2009, Prime Minister Singh expressed 'shock' that the conviction rate of cases of atrocities against the SC/STs is less than 30% against the average of 42% for all cognisable offences under the Indian Penal Code.^[18]

And in rape cases the conviction rate is just 2% ^[19]

Karnataka has only 8 Special courts, though 15 of 30 districts are declared 'atrocity prone'. Overall conviction rates remain at or below 5%. Even the few special courts seem to be biased. In 2010, of the 101 cases disposed of in the Tumkur special court, not one was convicted. Gulbarga, another atrocity prone district had a conviction rate of just 2%. 7 districts had a conviction rate of 0% in 2010.^[20]

Investigation

According to Rule 7(1)^[21] investigation of an offence committed under the SC/ST Act cannot be investigated by an officer not below the rank of Deputy Superintendent of Police (DSP).

Various High Courts have vitiated the trail based on the above rule and have improperly set aside the order of conviction.^[22] The rule was to ensure that the investigations were of high quality, and the assumption was that senior officials would not be as biased, nor as vulnerable to other pressures, as those in the lower rungs of the police force. But the judges in their wisdom have allowed perpetrators to go free based on this legal fig leaf.

The Andhra Pradesh High Court, in D. Ramlinga Reddy v. State of AP,^[23] took the position that provisions of Rule 7 are mandatory and held that investigation under the SC/ST (Prevention of Atrocities) Act has to be carried out by only an officer not below the rank of DSP. An investigation carried out and charge sheet filed by an incompetent officer is more than likely to be quashed. Similarly, the Madras High Court in M. Kathiresam v. State of Tamil Nadu^[24] held that investigation conducted by an officer other than a DSP is improper and bad in law and proceedings based on such an investigation are required to be quashed. The Courts without taking into consideration the inadequacies of the State, have been punishing SC/STs (the victims) for the same. Shri Pravin Rashtrapal, Member of Parliament rightly pointed out that there are insufficient officers at that level.^[25] His statement is supported by the Annual Report of 2005-2006 of Ministry of Home Affairs.^[26] Of the total posts sanctioned by the government under Indian Police Service (IPS) more than 15 percent of the posts are vacant. This basically means that there is one IPS officer for 77,000 SC/STs.33

In the case of Karnataka, there were no officers of the required rank in three districts, as admitted by the government at the State Vigilance and Monitoring Committee (SVMC) in September 2010.^[27] Though officers of higher rank can conduct the investigation (the Act only says 'at least of rank'), in practice they seldom do.

Compensation

Atrocities often take place when persons belonging to the SC community do not fulfill their 'caste functions' by doing ritually prescribed 'unclean' work or break the caste boundaries such as sitting in the bus or wearing a turban—often the preserve of the dominant castes. Atrocities are often a form of 'collective' punishment for daring to have even some semblance of non-dependence which is termed as 'prosperous', and the atrocity is to bring them back into the situation of total dependence and servitude. The state therefore has the duty to help the community back on its feet.

In fact, a part of the reason why atrocities are committed is economic activity. In my experience, I have seen that in some areas, the Scheduled Caste or the Scheduled Tribe person is prosperous. My knowledge is mostly about the Scheduled Caste, not about the Scheduled Tribe. It is because of the economic activity, because of the enterprise, there are areas where the Scheduled Caste people have also become prosperous. The Scheduled Caste people are able to build brick and stone houses. The Scheduled Caste people are able to acquire vehicles. The Scheduled Caste people are able to dress better, send their children to better schools. One of the reasons why atrocities take place in those places is to cripple them economically. Every riot, every arson case cripples them economically. Therefore, it is important that the State must immediately rush in social and economic measures for the rehabilitation of those who have suffered through these atrocities.^[28]

The government has prescribed a schedule for compensation^[29] under Rule 12.(4)) as Annexure 1 entitled Norms for Relief Amount. This is periodically updated.

Record

As 'police' and 'public order' are state subjects, primary responsibility for prevention of atrocities and maintenance of law and order rests with the State Governments. A responsive police administration has always been recognized as an essential requirement in any society that seeks to take care of its citizens. Such responsive administration is essential for prevention of atrocities likely to be inflicted upon SCs and STs by unscrupulous non-SC/ST elements.

Section 21(1) and (2) of SC/ST (POA) Act, 1989 stipulate that the State Government shall take all such measures as may be necessary for its effective implementation. However, despite the Act and Rules, the situation has not changed much. The incidence of atrocities is actually increasing, and the implementation of the law leaves much to be desired as this statement of the Union Minister for Home Affairs shows:

"Madam, I must concede that the statistics do not reflect any decline in the atrocities. On the contrary, the information compiled by the Crime Records Bureau shows that the number of cases registered of atrocities against the Scheduled Castes and the Scheduled Tribes is, in fact, on the rise. I have the numbers from 2006 to 2008, subsequent years are being compiled. Take for example the case of the Scheduled Castes. The number of cases of atrocities against the Scheduled Castes registered in 2006 was 26,665. That itself is an understatement. Many of the cases are simply not registered. In 2007, it was 29,825 and in 2008 it was 33,365. So, this clearly shows the rise in trend.

I can make one or two deductions from this.

1. Firstly that there is no let up in the atrocities committed on the Scheduled Castes.
2. The other inference one can make is, perhaps, because of the pressure that is put on the State Governments by the Central Government, by public opinion and by NGOs, now the States are showing greater willingness to deal with the problem. Therefore, more cases are being registered.

[...]

We cannot be happy about the fact that approximately 33,000 cases are being registered as atrocities against Scheduled Castes in one year. What makes it even more disturbing is that while so many cases are registered, the conviction rate hovers around 30%. What makes it doubly painful is that there is rise in atrocities, but when you try to prosecute and convict, the conviction rate is only 30%. It was 28%, 31.4% and 32%. Not only are acquittals very high; pendency is about 80%. [...]

I am afraid that the disposal of the cases is low; the rate of conviction is low. Therefore, it is fair to conclude that the feeling amongst the Scheduled Castes and the Schedule Tribes that all these laws and all these statements, all these pronouncements have really not brought any relief to them. That feeling is running high and I cannot but say that feeling is justified."^[14] (p143,144 of the printed text).

23 States have set up SC/ST Protection Cells. Nodal Officers have been appointed in 28 States.^[3]

Though the Act and rules are stringent, it is not a deterrent, as the Minister for Home Affairs P Chidambaram admitted in the Lok Sabha, referring to the Central Committee monitoring the implementation of the Act:

A committee under the Chairmanship of the Minister of Social Justice was set up after the SCs and STs (PoA), 1989 was passed. That Committee has met, so far, 10 times. The situation in 25 States and 4 Union Territories were reviewed. That committee has expressed that the most important areas of concern are the following five:

1. firstly, the high rate of acquittal;
2. secondly, the high rate of pendency of cases and very low rate of disposal;
3. thirdly, inadequate use of the preventive provisions of the Act, while the punitive provisions are invoked and FIR is registered, preventive provisions are rarely invoked;
4. fourthly, that the committees and other mechanisms provided in the Act have virtually not been put to use; and fifthly,
5. the Act itself may not be deterrent, perhaps it is not being as deterrent as we thought it could be.^[14]

Drawbacks and lacunae

Bias

Going through the Indian judicial system is degrading for any Dalit because of the still existing biases of the court judges. One example is the conduct of an Allahabad High Court judge who had his chambers "purified" with water from the ‘ganga jal’ because a Dalit judge had previously sat in that chamber before him.^[30] Another example is the case of State of Karnataka v. Ingale.^[15] The State of Karnataka had charged five individuals with violating the SC/ST Act. At trial, four witnesses testified that the defendants had threatened Dalits with a gun to stop them from taking water from a well. The defendants told the Dalits that they had no right to take water, because they were `untouchables'. The trial judge convicted all of the defendants. On appeal, the Additional Sessions judge confirmed the conviction of three defendants but acquitted two. On further appeal to the High Court, the judge acquitted all the defendants after rejecting the testimony of the four Dalit witnesses. The Dalits finally got relief from the Supreme Court.

Perhaps the most important bias (re implementation of this Act) is that there is little done to prevent atrocities. Most of the reports are of what is done after an atrocity has been committed. Few states have preventive measures in place. The 'relief' provided is a pittance and the confidence of the community is seldom rebuilt.

For the opponents of social justice, the low conviction rates are evidence of misuse of the Act by the SCs and STs to threaten and blackmail other communities. Actual data on such misuse is not available. However, the acquittal rates are abnormally high, as acknowledged by the prime minister and home minister (quoted above). There is also a high rate of FIRs rejected as being 'false' by the police. In Karnataka the rejection rate at the police station level (the 'B' report that classifies a case as false) was 77% of total cases disposed off in 2009^[31]—so much so that it became a topic for discussion in the SVMC. There were accusations by the top police officers and the top legal officers of the state, in the presence of the chief minister, other ministers and top officials, that the other was not doing their duty.^[32]

Legal system

The legal regime is fraught with contradictions. While the legal text is explicit in seeking remedies, the implementation of the text appears to evade actual performance. Laws and legal processes are not self-executing; they depend on the administrative structure and the judiciary with the anticipation that the social attitudes are driven by notions of equity, social justice and fair play.^[33] However, the increasingly indifferent responses of those involved in the implementation of laws protecting the weak, the oppressed and the socially disadvantaged have persisted over the years and the system has failed to provide for self-correction. The problem is that the victims of atrocities suffer not only bodily and mental pain but also feelings of insecurity and social avoidance which is not present for the victims of other crimes. If the judge delegated to protect them shows indifference, it further aggravates their already vulnerable position.

Rehabilitation

According to the preamble of the SC/ST Act, it is an Act to prevent the commission of offences of atrocities against SC/STs, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. The Madhya Pradesh High Court also had the same view and observed in the case of Dr. Ram Krishna Balothia v. Union of India^[34] that the entire scheme of the SC/ST Act is to provide protection to the members of the Scheduled Castes and Scheduled Tribes and to provide for Special Court and speedy trial of the offences. The Act contains affirmative measures to weed out the root cause of atrocities, which has denied SCs and STs basic civil rights. The Act has addressed the problem the regarding the dispensation of justice, but what the failed to deal with is the problem of ‘rehabilitation’. There is mention of rehabilitation under Section 21(2)(iii), but there are no provision addressing the same. As it has been stated earlier that victims of atrocities are on a different level when compared to victims of other crimes, hence there should be special provision for the same. According to the report submitted by the National Commission for Review and Working of the Constitution,^[35] victims of atrocities and their families should be provided with full financial and any other support to make them economically self-reliant without their having to seek wage employment from their very oppressors or classes of oppressors. Also it would be the duty of the state to immediately take over the educational needs of the children of such victims and provide for the cost of their food and maintenance.

SCs and STs constitute 68% of the total rural population. According to the 1991 agricultural census a large number of SCs and STs are marginal farmers compared to the other sections of the society and because of this the number of cultivators are going down. In other words, the landlessness is increasing at a faster rate among SCs and STs. At the same time, the number of SC and ST workers as agricultural labourer is increasing at a faster rate when compared to other sections of the society. This basically implies that after losing their land holdings, SC and ST cultivators are becoming agriculture labourers. Loss of land, on the one hand, is caused by atrocities making them more vulnerable. This in turn fuels and promotes continuance of atrocities and untouchability.

Marginalisation is one of the worst forms of oppression. It expels a whole category of people from useful participation in the society and therefore potentially subjected to material deprivation and this could even lead to extermination. Moreover, this leads to the state of powerlessness which perhaps is best described negatively; the powerless lack authority, status and a sense of self.^[36] Moreover, every right has three types of duties—duty to

• Avoid deprivation.
• Protect from deprivation.
• Aid the deprived.

Though the SC/ST Act does cover these duties, and its implementation is admittedly uneven, it is found wanting most in the third: duty to aid the deprived. One possible reason could be that the State has to work through its officials who are drawn from the same oppressive social strata. Though the Act does mention that officers and other staff appointed in an area prone to atrocity shall have the right aptitude and understanding of the problems of the SCs and STs (Rule 13(1)) in practice, these officials often collude with their caste brethren and even file counter-cases against the victims or their family members.^[37] This means, in addition to the perpetrators getting away with the original crime, free to further intimidate the victims, the victims are left helpless—denied the government compensation and assistance to rebuild their life. They have to go back to the same perpetrator caste for their livelihood or daily wage labour. Hence, it is necessary to make the SCs and STs self-dependent.

Lack of awareness

The statement of object and reason of the SC/ST Act clearly reveals that the Act, in its letter and spirit, desires that Dalits lead a dignified life. However, even after 16 years of its existence in the statute book, it has not shown its desired effect.

The majority of the beneficiaries of this Act are unaware of the legitimate claims of leading a dignified way of life or are unwilling to enforce it intensively. Even the Police, prosecutors and judicial officers are unaware of this Act as was pointed out by Calcutta High Court in the case of M.C. Prasannan v. State of West Bengal.^[38]

Misapplication of the Act by police and the courts aggravates the problem ultimately leads to acquittals.^[39]

Some atrocities not covered

Social and economic boycott and blackmail are widespread. In view of the fact that the main perpetrators of the crime sometimes co-opt a few SC/STs with them and take advantage of local differences among the SC/STs and sometimes they promote and engineer crimes but get them executed by some members of SC/STs, the Act should be suitably amended to bring such crimes and atrocities within the purview of the definition of atrocities under the Act.^[35]

Likewise, the Special Courts established under Section 14 of the Act are required to follow the committal procedure under Cr.P.C. Such an interpretation prevents the speedy trial envisaged under the Act. The absence of adequate special courts has resulted in slow disposal of atrocity cases and a huge backlog.

Dalits in other religions not covered

This Act is applicable only for those communities that are in the government Schedule Caste or Schedule Tribe lists. Those who suffer from caste based discrimination (CBD) but are left out of the government list—the Dalits—(mainly those who profess Christianity or Islam, but even others who are not on the list due to mis-classification) do not come under its purview. This makes Dalits who have exercised their freedom of religion more vulnerable (if they or their ancestors changed their religion) or subject to administrative whims and fancies (if they profess to be Hindu, Sikh or Buddhist).

Empowering provisions

Migration

Under constitutional provisions, a caste or tribe is notified with reference to a State or Union territory. Hence a person born in state/UT gets certificate of SC/ST if his/her father belongs to specified caste/tribe in that state as SC/ST. On migration to another state, they lose their SC/ST status for affirmative actions, i.e. benefit of admission in educational institutes, reservation in government employment etc. but the protection accorded under this Act stays. Once a person is notified as SC/ST in any state/UT, they are protected under the SCs and STs (Prevention of Atrocities) Act, 1989 throughout the country, irrespective of whether the particular caste or tribe is notified in the state/UT where the offence is committed.

Legal aid

Legal aid is available for all victims regardless of financial status. For all others legal aid depends on the financial status.

Civil society response

Monitoring implementation

Comprehensive tools have been developed to monitor the implementation of the Act for each case, and at the district and state levels.

Many civil society organisations (CSOs) started using this Act to provide some relief to the victims almost immediately. A few Dalit and human rights organizations took to monitoring violence against the SC&ST communities, documenting them, publicizing them and also monitoring the use of the Act in dealing with these crimes. One of the first to monitor the implementation of this Act was Sakshi in Andhra Pradesh. However, that was restricted to monitoring up to the judicial process—up to the filing of the First Information Report (FIR) in the police station. Special attention was given to ensure that the filing of the First Information Report (FIR) included sections of the POA.

The full monitoring of the Act by CSOs is a later phenomenon^[40] and has not matured in that civil society reports on implementation of the Act (shadow reports to the ones mandated by the Act section 21(4)) are yet to be done.

Annual reports by Citizen's monitoring committees have been done in Karnataka for 2009 (English), 2010 (English and Kannada) and a combined report for 2011 and 2012 (in English and Kannada(with monitoring tools)) auditing the performance of the State, including the bureaucracy, judicial system, police and monitoring mechanisms (DVMCs and SVMC). However, atrocities in the state still continue to rise, and convictions remain low.

Filing PILs for implementation

Some organizations also used the provisions of the Public Interest Litigations (PIL) to demand better implementation under the Act at High Court level and National Campaign on Dalit Human Rights (NCDHR) in the Supreme Court of India.

National coalition to strengthen the Act

On the 20th anniversary of its enactment, CSOs came together from across the country to review its implementation and formed a 'National Coalition for Strengthening SC & ST Prevention of Atrocities Act' that took stock of the implementation of the Act in a 'report card', analysed the lacunae and suggested a set of amendments for improving the implementation. State specific 'fact sheets' were also made available for Madhya Pradesh and Bihar

Many important areas such as social and economic boycotts, causing hurt, destruction of property, defining the SC communities to include those who profess a religion other than Hinduism, Sikhism, Buddhism, and better monitoring mechanisms were identified.

The initial organisations comprising the National Coalition are Adharshila, Alternative Forum for Dalit Liberation, AP Dalit Bahujan Shramik Union, All India Dalit Mahila Adhikar Manch, Ambedkar Lohiya Vichar Manch, Anhad, CBCI Commission for SC/ST/BC, Centre for Dalit Rights, Centre for Social Equity and Inclusion, Centre for Mountain Dalit Rights Himachal Pradesh, Centre for Social Justice, Centre for Social Justice & Development, CSRD-People Monitoring Committee, Cornerstone, Dalit Aarthik Adhikar Aandolan, Dalit Action Group, Dalit Dasta Virodhi Manch, Dalit Foundation, Dalit Movement for Human Rights and Dignity, Dalit Nyay Andolan, Dalit Samanway, Development Initiative, Dr. Ambedkar Agriculture Development and Research Institution, Dr. Ambedkar Excellence Education and Public Welfare Institution Samiti, Dynamic Action Group, Evidence, Human Rights Alert, Human Rights Forum for Dalit Liberation-Karnataka, Human Rights Forum for Dalit Liberation-TN, Human Rights Foundation, Human Rights Law Network, Indian Alliance for Child Rights, Indian Institute of Dalit Studies, Indraprastha Public Affairs Centre, Insaaf Dilao Committee, Jana Vikas–Orissa, Jan Sahas, Janvikas, Gujarat, Jeevika, Karnataka Dalit Mahila Vedike (KDMV), Multiple Action Research Group, NCCI Commission on Dalits, Narigunjan, National Action Forum for Social Justice, National Campaign on Dalit Human Rights (NCDHR), National Confederation of Dalit Organizations (NACDOR), National Council of Dalit Christians, National Dalit Election Watch, National Dalit Forum, National Dalit Movement for Justice (NDMJ), National Federation for Dalit Land Rights Movements, National Federation for Dalit Women, Navsarjan Trust, People's Vigilance Committee on Human Rights, People’s Action for Rural Awakening, People’s Watch–Tamil Nadu, Praxis–Institute for Participatory Practices, SC/ST Employees Association (AP Bhawan), Safai Karmachari Andolan, SAKSHI – Human Rights Watch, Sasvika, Social Action For Advocacy & Research (SAFAR), Social Awareness Society for Youth (SASY), Society for Participatory Research in Asia (PRIA), SICHREM, VICALP, Working Group for Human Rights in India and UN, YUVA.

Continuous monitoring

Many organisations continue to monitor the implementation of the Act, and bring out state level reports.

1. Himachal Pradesh: Monitoring by Centre for Mountain Dalit Rights
2. Karnataka: Monitoring by Committee Monitoring and Strengthening the POA in Karnataka (CMASK) led by the Karnataka Dalit Mahilla Vedike (KDMV). State reports are available on the status of implementation during 2009 (English), 2010 (English and Kannada) and a combined report for 2011 and 2012 (in English and Kannada (with monitoring tools)). Also available in Kannada is the monitoring calendar .
3. Tamil Nadu: monitoring by SASY.

SCs and STs (Prevention of Atrocities) Amendment Ordinance 2014 (No 1 of 2014)

The Amendment Ordinance 2014 was signed by the president on 4 March 2014 and came into force immediately. Since it was an ordinance, and was not ratified by (the next) parliament within six (6) months it lapsed. It was then referred back to the cabinet.

The key features of the ordinance are

1. Addition of following new category of offences to the existing 19 punishable offences. In addition to the 19 offences listed in the Act, following new offences proposed. To cite a few: tonsuring of head, moustache, or similar acts which are derogatory to the dignity of Dalits and Adivasis; garlanding with chappals; denying access to irrigation facilities or forest rights ; dispose or carry human or animal carcasses, or to dig graves; using or permitting manual scavenging; dedicating Dalit women as devadasi; abusing in caste name; perpetrating witchcraft atrocities; imposing social or economic boycott; preventing Dalit and Adivasi candidates filing of nomination to contest elections; hurting the modesty of Dalit/Adivasi woman by removing her garments; forcing to leave house, village or residence; defiling objects sacred to SCs and STs; touching a women or uses words, acts or gestures of a sexual nature against women.
2. Addition of IPC offences attracting committed against Dalits or Adivasis as punishable offences under the POA Act. Presently, only those offences listed in IPC as attracting punishment of 10 years or more and committed on Dalits/ Adivasis are accepted as offences falling under the POA Act. A number of commonly committed offences (hurt, grievous hurt, intimidation, kidnapping etc.) are excluded from the Act. This provides loopholes for the perpetrators of crime to escape from being punished for these commonly committed crimes. Therefore, a Schedule of list of IPC offences is provided in the amended act.
3. Establishment of Exclusive Special Courts and Special Public Prosecutors to exclusively try the offences falling under the POA Act to enable speedy and expeditious disposal of cases. Presently, Special Courts and Public Prosecutors also deal with other cases besides atrocity cases. Consequently, cases are kept pending for long time. Thus victims are denied justice or speedy justice. Establishment of an Exclusive Special Court for one or more districts and Exclusive Public Prosecutor is proposed;
4. Power of Exclusive Courts to take cognizance of offence and completion of trial in 2 months. Courts so established or specified shall have power to directly take cognizance of offences under this Act and the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet.
5. Addition of chapter on the ‘Rights of Victims and Witnesses’. As of now, the Act recognizes a few rights of the victims and witnesses. This is insufficient. Therefore, many other essential rights are covered so as to impose duty and responsibility upon the State for making arrangements for the protection of victims, their dependants and witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence.
6. Defining clearly the term ‘wilful negligence’ of public servants at all levels, starting from the registration of complaint, and covering aspects of dereliction of duty under this Act. Section 4 of the present Act does not clearly define what constitutes ‘wilful negligence’ of public servants. Hence, ‘wilful negligence’ is defined by listing specific transgressions of law: for example, police officers not putting down accurately in writing the victim’s complaint; not reading out to the victims what has been recorded prior to getting their signature; not registering FIR under the Act; not registering it under appropriate sections of the Act; etc.
7. Addition of presumption to the offences –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.

SCs and STs (Prevention of Atrocities) Amendment Bill 2014

The bill was introduced in parliament on 7 July 2014 and referred to the standing committee on 17 July 2014. Subsequently it was passed by the Lok Sabha on 4 August 2015.^[41]

It is virtually the same as the ordinance, with a few changes to improve efficiency.

The Act, Rules and Amendments

1. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (The Bare Act)
2. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules 1995 (Just the Rules)
3. Amendments of 8 November 2013 Providing for subdivisional vigilance and monitoring committees and central government nominees at all levels.
4. Amendments of 23 June 2014 amending rules and enhancing compensation.
5. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance of 4 March 2014 (fairly comprehensive overhaul with new sections, chapters and schedules added)

Misuse

The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 tops the list of misused laws in India.^[42] Under this act, accused will be arrested and its non-bailable offense. There is growing sense fear and several instances where this act is used by dalits against non-dalits to settle personal scores.^{[43][44][45][46][47]}


Random application of the SC/ST Act in criminal cases and the high acquittal rates in most of them show a disturbing trend of the special legislation being misused, particularly in metropolitan cities, to settle personal scores. According to legal experts, such a tendency, if not checked in time, will dilute the effect of the legislation wherein genuine cases could also suffer.


Of the total cases registered under the Act in Delhi, only 10-15% result in conviction while the rest end in acquittal, discharge or compromise between the parties. Figures released by the National Crime Records Bureau (NCRB) show that of the 39,408 cases of alleged crimes against SCs last year, only 23.8% resulted in conviction. The conviction rate in cases of crimes against STs was even worse. Of the 6,793 cases registered in this regard, the conviction rate was a mere 16.4%.


Time and again, courts have also voiced concern over misuse of provisions of this special legislation. Most commonly misused provision is section 4 of the Act, which says that in case the policeman does not act on a complaint, he could be imprisoned for a term that should not be less than six months and may be extended to a year. Another stringent feature of the law, which is often abused, is the fact that police are empowered to arrest the offender without any warrant and start an investigation. It is almost impossible to get an anticipatory bail in cases lodged under this Act. Besides, unlike the IPCs, there is a provision in this Act, which says that not just the victim, but anyone who knows that an offence has been committed can lodge a complaint.


A senior public prosecutor associated with a designated SC/ST court said, "More than 80% cases come down to acquittal. This procedure is grossly being misused by people for personal issues. Even the police, for fear of prosecution, hurriedly file cases under this Act without any applying their mind."


Another senior lawyer who did not wish to be named said, "Of the 10 cases under this Act, only one ends in conviction. In most of the cases, the Act is invoked "casually" just because the alleged victim happens to be a member of the SC/ST community irrespective of there being an element of "racial slur".


The lawyers associated with the designated courts in all six district courts of Delhi voiced similar opinions. They, however, cautioned that this needs to be checked immediately so that genuine cases are not hampered.


In a judgment passed in 2010, Additional Sessions Judge Kamini Lau had said, "Unfortunately one comes across growing instances of cases where the provisions of this Act have not so much been invoked for the betterment of those to whom it seeks to protect, than by those who want to settle personal scores by giving to an otherwise ordinary dispute, the colour of an alleged atrocity under the Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act 1989." The same court had advocated amendments in the special Act while acquitting 82 of the 97 convicts in the case of burning alive of a 70-year-old Dalit and his physically- challenged daughter at Mirchpur village in Haryana last year. Most of the accused had been falsely implicated in this case under the Act, the court had said.


Another designated SC/ST court of Additional Sessions Judge Rajender Kumar Shastri, in a recent judgment had said that instances of powerful members of some clans "abusing" this act had shockingly increased.^[48]


As noted supreme court, this act is misused as legal terrorism.^[42]

See also

• Paramakudi Riots
• Ambedkar controversial cartoon

References

External links

• Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989