Legal issues

Law and loophole

Print edition : February 19, 2016

Students of the University of Hyderabad staging a protest on the campus on January 27. Photo: K.V.S. Giri

The registration of cases against the accused under the old, unamended Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act may weaken the prosecution’s case.

THE suicide of the Dalit research scholar Rohith Vemula in the University of Hyderabad raises the question whether it could have been prevented had the law prohibiting discrimination against the Scheduled Castes and the Scheduled Tribes been deterrent enough.

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2015, which seeks to make the principal Act of 1989 more stringent, was passed by the Lok Sabha on August 4 and by the Rajya Sabha on December 21. The Bill secured the President’s assent on December 31 and was notified on January 1, 2016.

However, it came into force only on January 26, ostensibly to enable the government to frame the revised rules to enforce the amended Act. That the revised rules were not ready before January 26 only shows the lack of seriousness on the part of the government to effectively implement the amended Act.

Following Rohith’s suicide, the police in Hyderabad registered cases for abetment of suicide and for violations under the unamended S.C./S.T. Atrocities (Prevention) Act, as the amended Act had not yet been brought into force on January 18. Cases have been registered by the Gachibowli police against Bandaru Dattatreya, the Union Minister for Labour (Independent charge) and Member of Parliament from Secunderabad; Professor Appa Rao Podile, Vice-Chancellor of the University of Hyderabad; N. Ramachandra Rao, Member of the Legislative Council; Krishna Chaithanya; Susheel Kumar and Nandanam Diwakar. The first information report (FIR), filed by Dontha Prashanth, a PhD student at the university hostel in Gachibowli in Serilingampally mandal in Ranga Reddy district, says that the accused, in collusion with the university authorities, harassed him, because of which he and Rohith suffered mental agony.

According to the complaint, Rohith could not bear the atrocities, the humiliation, the harassment, the insults and the injustice meted out by Appa Rao at the instigation and abetment of Bandaru Dattatreya and the other accused, which led to his suicide.

According to reports in the media, Dattatreya’s alleged offence is that he wrote a letter to Union Minister of Human Resources Development Smriti Irani, which led to the suspension of a group of Dalit students in the university. Dattatreya, according to the reports, had demanded action against the “anti-national” and “anti-social” elements on the campus.

Social boycott

Rohith, a second-year research scholar of the Science, Technology and Society Studies Department, committed suicide as he was one of the five students who were suspended and expelled from the hostel for allegedly beating up Susheel Kumar, president of the Akhil Bharatiya Vidyarthi Parishad unit in the university, on the intervening night of August 3 and 4. Rohith was allegedly subjected to social boycott before he committed suicide.

It is not surprising that the accused in the case have not been arrested yet. The failure by the police to take action against the accused soon after the reporting of an incident was the main grievance against the unamended Act. The majority of the victims and the witnesses face hurdles at every stage of the legal process—from the registration of the case to investigation and charge-sheeting of the accused.

The Act, before the 2015 amendment, suffered because of procedural hurdles, such as non-registration of cases; delays in investigation, arrests and filing of charge sheets; prolonged trial; and low conviction rates.

The FIR filed at the Gachibowli police station on January 18 reveals that apart from Section 306 (abetment to suicide) of the Indian Penal Code (IPC), Sections 3(1)(ix) and (x), and 3(2)(vii) of the unamended Act have been invoked against the accused.

Section 3(1)(ix) says that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.

Section 3(1)(x) says that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.

Section 3(2)(vii) says that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, being a public servant, commits any offence under this section shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence.

More offences added

In the 2015 Amendment Bill, the entire Section 3(1) has been changed, with the addition of more offences. However, Section 3(1)(ix) of the unamended Act has been retained as Section 3(1)(q). Section 3(1)(x) of the unamended Act has been retained as Section 3(1)(r). Section 3(2)(vii) remains unchanged.

The amended Act provides for the establishment of exclusive special courts and special public prosecutors to try offences under the Act and to enable speedy and expeditious disposal of cases. The exclusive special courts have the power to take cognisance of offences and complete the trial within two months from the date of filing of the charge sheet.

The amended Act also includes a chapter on the “Rights of Victims and Witnesses”, which imposes on the state the duty and responsibility of making arrangements for the protection of victims, their dependents and witnesses against any kind of intimidation, coercion, inducement, violence or threats of violence.

More important, under the amended Act, a victim or his dependent has the right to reasonable, accurate and timely notice of court proceedings, including bail proceedings and the special public prosecutor and the State government are bound to inform the victim about such proceedings under the Act.

Besides, a victim or his dependent shall be entitled to be heard at any proceeding under the amended Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing. It is of concern that the absence of these safeguards in the unamended Act, under which the accused have been charged, could weaken the prosecution’s case.

The Union Ministry of Social Justice and Empowerment had told the Parliamentary Standing Committee on Social Justice and Empowerment, which examined the Bill in 2014, that in many cases, it was difficult for the prosecution to prove the intention of the accused, even though their actions clearly constituted an offence. This, the Ministry said, resulted in the poor number of convictions.

Ironically, Section 3(1)(x) of the unamended Act and 3(1)(r) of the amended Act both use the word “intentionally” before the offence. The Ministry officials, while testifying before the Parliamentary Standing Committee, had even referred to a Supreme Court judgment which held in 1993 that mens rea (intention) is not an essential ingredient in social legislation.

The amended Act, had it been brought into force soon after its notification on January 1, would have helped the police to invoke the new provisions detailing new offences against the accused. Thus, Section 3(1)(u) makes it an offence to promote feelings of enmity, hatred or ill will against members of the Scheduled Castes or the Scheduled Tribes by words, either written or spoken, or by signs or by visible representation or otherwise.

Section 3(1)(za)(D) makes it an offence to obstruct or prevent a member of a Scheduled Caste or Scheduled Tribe in any manner with regard to “entering any educational institution, hospital, dispensary, primary health centre, shop or place of public entertainment or any other public place; or using any utensils or articles meant for public use in any place open to the public”.

Section 3(1)(zc) considers it an offence to impose or threaten a social or economic boycott of any person or a family or a group belonging to a Scheduled Caste or a Scheduled Tribe.

As the investigation and the trial begin against the accused under the unamended Act, the results will come under public scrutiny for any omissions and commissions which may weaken the capacity of the law to render speedy and effective justice to the victims.

With inputs from Kunal Shankar