Print edition : April 27, 2018

A rail roko agitation in Nagpur on April 2 in response to the Bharat bandh call by Dalit organisations. Photo: S. Sudarshan

Dalit activists and supporters staging a rail roko in Jalandhar, Punjab, on April 2. Photo: PTI

The Supreme Court order placing restrictions on the arrest and filing of cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act sparks intense nationwide protests from Dalit organisations.

IN what is seen as a terrible blow to social justice, a two-judge bench of the Supreme Court diluted the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Reading down provisions contained in Section 18 of the Act (which does not permit the invocation of Section 438 of the Code of Criminal Procedure for anticipatory bail and prior sanction), Justices Uday Umesh Lalit and Adarsh Kumar Goel, in their March 20 verdict in Subhash Kashinath Mahajan vs State of Maharashtra , ordered that a public servant should not be arrested under the Act without the written permission of the appointing authority and in the case of one who is not a public servant, without the approval of the district’s Senior Superintendent of Police.

Such permissions should be recorded and served on the accused and the court concerned. When a person is arrested and produced before a magistrate, the magistrate should use his discretion to allow further detention. In essence, the bench directed that any case under the Prevention of Atrocities Act should be deemed as false unless proven otherwise, and decreed that no first information report (FIR) could be registered without preliminary inquiry to check whether a case was “not frivolous or motivated”. If no prima facie case was made out, the accused would be free to obtain anticipatory bail. The court went beyond its mandate to rewrite a law, which was good on paper but was violated in its non-implementation.

The bench pronounced the judgment while considering a special leave petition of Mahajan, a former Director of Technical Education in Maharashtra, against the Bombay High Court order refusing to quash the FIR lodged against him under the Prevention of Atrocities Act. The bench had earlier framed the question of whether there could be procedural safeguards so that provisions of the Act were not abused for extraneous considerations.

The case pertained to adverse remarks made in the Annual Confidential Report (ACR) by the principal and a professor of the College of Pharmacy, Karad, about an S.C. employee, Bhaskar Gaikwad. Gaikwad had sought the prosecution of the two, but Mahajan rejected the plea. Gaikwad then filed a complaint against Mahajan under the Act. Mahajan moved the High Court for quashing of the complaint. Rejecting the plea, a division bench of the High Court observed that the enforcement or implementation of the Act could not be thwarted merely because there was a possibility of the law being abused.

“That way, every law or every provision is capable of being abused.… mere giving of information to any public servant, but which is not false or frivolous or even if it is so, the giving of such information does not result in the consequences enumerated in Section 3(1)(ix), then, no offence and punishable under Section 3(1)(ix) is committed,” it said.

According to Ramesh Nathan of the National Dalit Movement for Justice, by overturning the High Court order in a service matter of departmental dispute between employees, the Supreme Court was overstepping and overlooking the reality. The same bench came under criticism last year for weakening the anti-dowry law when in Arnesh Kumar vs the State of Bihar it directed the police not to “mechanically make arrests” when cases are registered under Section 498A of the Indian Penal Code. It said Section 498A was being misused.

Political proximity

The two judgments share the same pattern of weakening the case for the victims in favour of the oppressors while assuming that women, Dalits and Adivasis widely misuse the law. Justices Lalit and Goel were appointed judges in July 2014, soon after Narendra Modi led the Bharatiya Janata Party (BJP) to power at the Centre. The move attracted controversy as these judges were appointed after the Modi government rejected Gopal Subramanium’s candidature as a Supreme Court judge.

Justice Lalit had represented BJP president Amit Shah as a Senior Advocate in the fake encounter killing of Sohrabuddin Sheikh and Tulsiram Prajapati in Gujarat. He was a special prosecutor in the 2G spectrum allocation case and had represented the government in opposing Dr Binayak Sen’s bail plea when he was arrested on sedition charges. Given the perceived political proximity enjoyed by Justice Lalit, it would be difficult for the government to distance itself from this judgment.

The apex court came under serious flak for pronouncing a judgment so far removed from ground reality. It was seen to be in favour of caste-Hindu lobbies, which for long held the Act to be “draconian” and exaggerated instances of exceptional mala fide cases as “rampant misuse”, a phrase referred to in the judgment by the court. “Complaints are largely being filed particularly against public servants/quasi-judicial/judicial officers with oblique motive for satisfaction of vested interests,” the bench observed. Several people questioned the evidence on which the bench said this.

P.S. Krishnan, retired Indian Administrative Services officer and a non-political prime mover of the Prevention of Atrocities Act and its 2015 amendments, said: “There was no basis for generalising and extending the [misuse] on the basis of selective and incomplete statistics and without a holistic picture.... The court was rightly concerned about the fundamental rights of Mahajan, the appellant in the case, but they also needed to take into account and feel concerned about the fundamental rights of the Scheduled Castes who do not have fundamental rights in the literal sense. He told Frontline that apart from actual cases of rape, mass murders and socio-economic boycotts, Dalits faced a constant threat to their very existence.

He wrote a letter to Thawar Chand Gehlot, Minister for Social Justice and Empowerment, countering the Supreme Court’s claim about false cases. “Because of the juxtaposition of the powerful and the powerless, it is very difficult to secure proper investigation and quick and successful trial. It is for this reason that a number of clear-cut cases, such as massacres and mass arsons, have ended in acquittals. In cases of convictions by trial courts, acquittals by High Courts have followed. There are cases where the Supreme Court set aside the High Court’s acquittals, showing that acquittal does not mean that the case is false,” he wrote.

Cases of atrocities

In Kizhavenmani, Tamil Nadu, 44 people belonging to the S.Cs were burnt to death; in Karamchedu, Andhra Pradesh, five members of the S.Cs were massacred; in Tsunduru, Andhra Pradesh, eight members of the S.Cs were massacred; and in Bathani Tola in Bihar, 21 Dalits were killed. In all these cases, the accused were acquitted.

According to National Crime Records Bureau (NCRB) data, in 2016, a dismal 1.4 per cent of the crimes against S.Cs ended in convictions; in the case of S.Ts, the percentage was 0.8 per cent. The bench quoted NCRB data for 2016, according to which, 5,347 of the investigated S.C. cases and 912 S.T. cases were found to be false. It was pointed out that in 2015, out of the 15,638 cases decided by the courts, 11,024 cases resulted in acquittal or discharge, 495 cases were withdrawn and 4,119 cases resulted in conviction. Of the total number of complaints investigated by the police in 2015, closure reports had been filed in almost 15-16 per cent of the cases. Of the cases disposed of by the courts in 2015, more than 75 per cent resulted in acquittal/withdrawal or compounding of cases. It was submitted that certain complaints were received alleging misuse of the Atrocities Act and a question was raised in Parliament as to what punishment should be given against false cases. The reply given was that awarding punishment to members of S.Cs and S.Ts for false implication would be against the spirit of the Act. A press statement dated March 19, 2015, was issued by the Central government to the effect that in case of false cases, relevant Sections of the IPC could be invoked.

Challenging the court’s interpretation that acquittals meant false cases, Krishnan asked whether a false case meant that people were not killed.

“Delay in investigation and trial results in intimidation of victims, survivors of victims and witnesses by various means, including social boycott and economic boycott, which are crippling. The crippling effect of boycott was placed before the Simon Commission by Dr Babasaheb Ambedkar in 1929. It is for this reason that the law was tightened by the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. Because the caste system is rampant and is inherited over the centuries, caste-based mindset, caste-based biases are widely prevalent among all sections, in all the limbs of the State and institutions. The Act has been strengthened keeping this in view, but that is not enough,” he said. Among the important amendments in the Act is a new chapter on the rights of the victims and the witnesses.

According to NCRB data, every day one Dalit/Adivasi woman was raped in the country, said Ramesh Nathan.

The average conviction rate under the Act is less than 25 per cent. “Holding the high acquittal rate as because of false cases is a wrong interpretation by the court without taking into account the reasons for the high acquittal rate,” he said. Casteism is deeply entrenched in society with members of institutions such as the police and the judiciary seeped in it.

“The reason for the high acquittal rate lies in the police not filing FIRs and not conducting proper investigations, and charge sheets not being filed on time. Sometimes it takes one to two years to file a charge sheet, during which time the perpetrators intimidate the victims and compromise happens at different levels. If at all charges are filed, the nexus between the accused and the lawyers compounded by political influence and the police, ensures that the case ends in acquittal,” he said, adding that the judiciary should examine the casteist mindset.

The Supreme Court observed that there were instances of abuse of the Act by vested interests against political opponents in local body elections and to settle private civil disputes arising out of property and monetary disputes, employment disputes and seniority disputes. In reality, not a single police officer had been punished under the Act for wilful negligence, except in cases of crime being committed by men in uniform such as custodial deaths or rape cases, Ramesh Nathan said.

As per the Act, special courts are to be set up in every district for speedy disposal of cases. According to a report by the Ministry of Social Justice in 2015, there were only 194 special courts across 14 States. Bihar, Uttar Pradesh, Madhya Pradesh, Maharashtra, Rajasthan, Chhattisgarh, Gujarat, Jharkhand, Karnataka, Odisha, Tamil Nadu and Telangana, which together account for more than 80 per cent of the atrocities against Dalits and Adivasis, did not have a special court.

Quoting B.R. Ambedkar, the court expressed concern that the working of the Act should not result in perpetuating casteism. “The Constitution envisages a cohesive, unified and casteless society,” the judges said, mentioning the principles of liberty, equality and fraternity.

Krishnan said: “To imply that a check on the Act is a way to promote fraternity is a very limited view of the historical and present role of the caste system and casteism. Casteism can be abolished only if its underpinnings such as denial of land to S.Cs, misappropriation of land belonging to S.Ts, lack of irrigation for S.C. and S.T. lands, unavailability of quality education from the preschool to the highest level for S.C. and S.T. children, and high neonatal, infant, under-five and child mortality rates, stunting, anaemia and other low health indices among S.Cs, are eliminated. These have to be tackled. Mere slogans and verbal attacks on the caste system will not eliminate it,” he said.

The Modi government did not anticipate that the judgment would draw such intense and widespread criticism. The government is seen as complicit in the dilution of the Act. This is attributed to the failure of the Additional Solicitor General, representing the Centre, in placing the relevant facts before the court. Crimes against Dalits have increased since the BJP came to power in 2014.

The Modi government’s handling of the University of Hyderabad student Rohith Vemula’s death and the flogging of Dalits in Una (Gujarat) has exposed its anti-Dalit character. Statements by BJP Ministers and Members of the Legislative Assembly in the respective States to change the Constitution to make India a Hindu Rashtra, preserving all its caste system and the hegemony of the upper caste Hindus, has not gone down well with the S.Cs/S.Ts.

Review petitions

Following the Supreme Court verdict, several BJP MLAs and MPs met Modi, led by Ram Vilas Paswan and Thawar Chand Gehlot. Chirag Paswan of the Lok Janshakti Party filed a review petition in the Supreme Court. More individuals and groups have planned to add to the review petition, requesting a larger bench of the court to revisit the judgment, rescind the directions and expunge certain observations therein. The government filed a review petition on April 2 against the court’s ruling. Clearly, it was under pressure to appease the minority. But in the absence of any assurance by the Prime Minister or his Cabinet, a Bharat bandh was called on April 2 by several Dalit outfits. The court has listed the Centre’s review petition for detailed hearing on a later date.

Krishnan demanded that the 1989 Act and the Prevention of Atrocities Amendment Act, 2015, be included in the Ninth Schedule so that they may get some protection in the matter of judicial review. He suggested that the Government of India become a party in all State appeals pending in the Supreme Court against High Court acquittals in cases such as Tsunduru and the six cases from Bihar, including Laxmanpur Bathe and Bathani Tola.

He said: “No government of this country has so far tackled the fundamental problems of S.Cs who have been denied land and are the most vulnerable in a rural society. It is because of the character of the elite who dominate all political parties. In a democracy, there are different interests of oppressors and the oppressed. While all instruments of governance are with the oppressors, the oppressed must learn to organise. The oppressed numbers are such that they are bound to get heard sooner or later. It does not matter whether a government is sincere or insincere. If the review petitions fail, then there are other options such as constitutional amendments, and we will try them all.”

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