The Supreme Court’s refusal to stay its March 20 order rectifying certain provisions of the SC&ST (Prevention of Atrocities) Act 1989 – amidst an extremely violent agitation set off by the opposition against the initial verdict – has put the national issues involved in the focus of a close public scrutiny. Three questions deserve to be examined. First, does the Act prescribing a particularly harsh course of criminal procedure for those who allegedly committed any form of aggression against a Dalit or a Tribal, show that even after some fifty years since the adoption of the Indian Constitution things had not changed at all? Second, is the Act not open to misuse by a complainant who was motivated by personal grudge or political influence? And thirdly, should the country not consciously move away from caste-based politics?
The SC&ST Act which became operational in 1995 goes beyond the normal law governing crimes against person – as applied to all citizens – to define and punish specific acts of violence or an ‘insult’ directed against a member of SC or ST by a non-member because of the identity of the former as a Dalit or an Adivasi. That the Dalits and Adivasis of this country had historically suffered at the hands of others – and even subjected to such condemnatory humiliation as ‘untouchability’ – is a fact and this alone made it totally justifiable on the part of the framers of our Constitution to introduce the concept of 'reservations' for these oppressed segments after Independence and seek to provide them a level playing field over a finite period of time. The ambit of reservations was, however, extended and enlarged from time to time to include many more caste – based identities and this created a political vested interest for the leaders who sought empowerment on the strength of their respective vote banks. While a huge number of Dalits and Adivasis have been pulled out of their poverty and state of suppression in socio- economic terms, caste-based politics is being perpetuated today by the ‘liberated’ lot who had benefited the most from ‘reservations’.
The SC&ST Act was a further step in the direction of ‘protecting’ the oppressed people historically identified as the victim of social ‘atrocities’. It imposed stringent punishment on those who carried the legacy of prejudice of the past in dealing with members of Dalit and Adivasi communities. There are two telling pieces of statistics of the crime under this Act that establish the fact of continuance of identity-based targeting of these groups out of sheer social hostility on one hand and highlight, on the other, the possibilities of misuse of the legal provisions by the complainants. The first point is proved by the fact that these offences are committed far more in rural India where the knowledge of the identity of the victim was there almost in all cases compared to the situation obtaining in urban centres. The second inference is supported by the low rate of conviction under this Act in spite of the mandate that investigations here will be done by a Gazetted Police Officer to ensure that a certain level of professionalism would be in play uniformly throughout the country.
To understand and appreciate the Supreme Court’s order of March 20 it is necessary first to glance through the contents of the SC&ST Act that create a new set of crimes in which the investigation and prosecution are heavily tilted against the offenders if they belonged to another community. It imposes much harsher punishment for the same offences as are defined under IPC – if they are committed against members of SC or ST by non-members. The Act identifies personal and social 'atrocities' -relevant to the Indian context -and prescribes deterrent penalties for the same. Forceful drinking or eating of inedible or obnoxious substance inflicted on a victim, stripping a Dalit or an Adivasi in public for causing ‘humiliation’ or enforcing social disabilities like denying access to certain places and facility of taking water from a spring or some other source – all these are rightly put under the purview of a harsh set of laws for strict enforcement.
What Supreme Court has done in the March 20 verdict is to hold that the express exclusion under Sec 18 of the Act relating to non-grant of anticipatory bail to anybody accused of having committed an offence under the Act, would be limited to only genuine cases and not where the accused is able to prove that he had not committed any atrocity or that the allegation was mala fide. The Court invoked protection of Fundamental Right of life and liberty under Art 21 of the Constitution in this context. The SC made a pithy observation that ‘the provisions of the Act may require a check on any false implications and accusations against innocent citizens on caste lines’. A public servant not belonging to SC&ST is always vulnerable to such allegations from a Dalit or Adivasi subordinate in the event of an adverse evaluation having been made by him or her against the latter in course of the official working.
The Supreme Court has brought in the concept of a higher-level scrutiny of the matter before the arrest in all cases. The punitive content of the Act has not been diluted – the SC has only checked any hasty arrests that could be made on inadequate examination of the complaint or under an undue political or other influence. Since a case under the SC&ST Act is investigated by an officer of the rank of Dy SP, the investigating officer should have no difficulty in securing his superior’s validation for the arrest if the complaint was genuine. Dalits and Adivasis have however, been made a part of community-based politics.
A review of the SC order filed by the Centre is already before the Apex court and its outcome will put a seal on the final interpretation of how the Act will be operationalised. Meanwhile the Modi government must get the law & order authorities of the states concerned to identify the perpetrators of the unacceptable violence for legal action. Militancy in the name of caste will mar the run up to the next General Election putting the Indian democracy itself in peril.
(The writer is a former director of Intelligence Bureau