Govt. needs to move SC on its observations on Atrocities Act: PS Krishnan

Published on: March 23, 2018
Following recent observations on the “misuse” of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act by the bench of judges U.U. Lalit and A.L. Goyal, which laid down stringent safeguards before victims could register a case under the SC/ST (POA) Act, Former Secretary to the Government of India, P.S. Krishnan, who also held many important positions including key member of the National Commission for SCs/STs, has appealed to the Union Minister of Social Justice and Empowerment Thaawar Chand Gehlot that the government should “urgently move the Supreme Court, requesting that a larger Bench of the Court revisit the above judgment, rescind the directions and expunge certain observations therein.”

SC Atrocities act

On March 20, 2018 the bench allowed anticipatory bail for an accused (of POA) Act, also drastic conditions such as requiring a DySP to conduct a “preliminary enquiry” to rule out “frivolous and motivated” complaints, and mandating prior sanction of an appointing officer or SSP before arresting a public servant or other citizens. These conditions are likely to pose further challenges to victims of caste based atrocities.

Krishan requested the Government to present a holistic picture such as the socio-historical background of the Act, the extreme vulnerability of the SCs and STs and the importance of not diluting any of the provisions of the Act. He suggested that any delay in taking action on this will also impact several other areas where SC/STs are already facing challenges, such as the question of GOI-PMS scholarships. It will be setting a bad precedent in that sense.

He also suggested that the Atrocities Act must be included in the Ninth Schedule so as to protect it from judicial view. He mentions that the Government of India should become a Party in all State appeals pending in the Supreme Court against High Court acquittals in cases like Tsunduru of Andhra Pradesh and Laxmanpur Bathe and Batahni Tola massacres.

He advised the Government to immediately issue a statement which could make it “clear that it shares the distress of the SCs and STs on the judgment, expressing its intent to quickly move the Supreme Court as above and clarifying that it does not agree with the reported gratuitous admission and misinterpretation of the ASG in the court, and assuring that the protection of the SCs and STs is a paramount goal of the Government.  This will assuage the feelings of SCs and STs and remove suspicions which have found public expression that the Government, through weak pleadings in the case before the Supreme Court, colluded in bringing about the present situation.

The key arguments on which he based his requests were attached in the form of an annexure, which we have summarised below:

Brief History of enactment of SC/ST (POA) Act
The SC-ST (Prevention of Atrocities) Act was enacted in 1989 under the leadership of the then Prime Minister Rajiv Gandhi, in view of the large scale atrocities that plagued vulnerable communities in India. The next government headed by V.P. Singh had operationalised the Act. A further amendment was made recently in 2015.

The letter argues that there has been a consensus across party line on the need for the strengthening of the Act. The letter noted that rural India is plagued with large scale discrimination against the SCs as there are clear divisions in villages depending on land ownership and most land is owned by dominant castes, leading to an almost complete alienation of Dalits in the areas. This is further strengthened by the wide-spread prevalence of “Untouchability’ which is still practiced despite the Constitutional bar in Article 17 and the PCR Act.

Because of these clear cut biases and hostility of the state machinery, which in itself constituted people from dominant castes, the letter noted that it was difficult to secure proper investigations and quick and successful trials. The letter drew attention to caste based massacres in which conviction could not be secured. It presented the case of Kizhavenmani atrocity, Laxmanpur Bathe, Kambalapalli, Karnataka.
 
Supreme Court observations on a Caste-less society
The letter quoted the observations and vision of the Supreme Court for a caste free society, it highlighted, “There cannot be any difference about the observation of the Supreme Court that a caste-less society must be created. But to give the impression that the Act is perpetuating casteism is not correct and needs expunging.  Casteism can be abolished only if its underpinnings are eliminated, such as the landlessness of SCs, the misappropriation of the lands of STs, lack of irrigation for SC and ST lands, unavailability of quality education from the pre-school to the highest level for SCs and STs, their high neo-natal, infant, under-five and child mortality rates, stunting, anaemia etc. in all of which they fare the worst among all social groups, and so on.  These have to be tackled. Mere slogans and verbal attacks on the caste system will not eliminate it.”

It argued that the POA Act 1989 and the POA Amendment Act 2015 are part of a package of comprehensive measures which caters to all spheres of life-economic, occupational, education etc.

Government case for upliftment of SC/STs requires strengthening
It also argued that the Government’s case can only be strengthened if it is able to show that it is genuinely concerned about the welfare of SC/STs through measures like legislation for Special Component Plan for SCs ad Tribal sub-plan (TsP) and SC and ST Development authorities, national campaigns in all states for grant of lands to all rural SC families and landless ST families with pattas/ownership documents and peaceful possession and other measures.

A case for Representation

It requested the courts to evolve a system whereby such judgments in matters pertaining to vulnerable classes and categories do not come from any of the Bench of the Supreme Court to which people look up for supreme justice. It also suggested that special efforts should be made that qualified individuals belonging to the SCs and STs and other disadvantaged sections and also women are consciously brought to the Bench of the Supreme Court so that adequate representation is provided to them

Escaping Arrests detrimental to principles of Justice
Making a very strong argument against the provision of anticipatory bail to the accused, the letter noted, “Government may point out that as perpetrators or promoters of atrocities are powerful individuals belonging to the dominant community of the village or area and the victims belong to the two most vulnerable classes, arrest of the accused has significant psychological value in the area. If such persons escape even arrest through anticipatory bail, it will be perceived as indication of the ability of such persons not to be even touched by the long-arm of the law.  It is on account of this reality that in the original Act 1989 itself anticipatory bail has been precluded.  The dilution of Section 18 of the Act by conditionalities such as those directed in the judgment of 20.3.2018 will encourage powerful perpetrators and potential perpetrators of atrocities, will encourage such police and other officers who suffer from widespread caste-bias, and demoralize and scare the already weak and vulnerable SCs and STs. 

Finally, it urged the government to dissociate itself from the ASG Shri Maninder Singh’;s statements before the Court as reported in Times of India March 21 report.

And the most important observation it made was that the observation of the Bench that “abuse” of law is happening, is a very drastic observation not supported by evidence and facts. It drew attention to the fact that whenever SCs have tried to stake a claim on lands, they have faced atrocities. In fact large scale atrocities take place on Dalits because of this particular issue. Apart from that SC/St women are routinely harassed, and their resistance also routinely becoming a cause for further injustices.

The full text of the letter may be accessed here

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